AGENDA Poway City Council
Council Chamber I 73325 Civic Center Drive I Poway , CA I 92064 December 6, 2022 I 7 p.m.
Thank you for participating in your local government and the City of Poway Council meetings.
Meet ings I Regular City Council meetings are held on the first and third Tuesday of the month at 7:00 p.m.
Meetin gs I Regular City Council meetings are held in the Council Chambers located at 13325 Civic Center Drive, Poway, CA 92064, the Council Chamber will be open to the public.
Public participation is encouraged in a number of ways as described below. Members of the public may attend the City Council meeting in person, watch the City Council meeting live online, or participate remotely via Zoom. Regular City Council meetings are broadcast live on Cox Communication Channel 24 and Spectrum Channel 19. Council meeting videos are archived and available for viewing on the City's website.
IN-PERSON SPEAKERS: Persons wishing to address the Council on matters not on the agenda may do so under Public Comment. Those wishing to speak on items on the agenda may do so when the item is being considered . Please submit a Speaker's Slip to the City Clerk prior to the meeting or the announcement of the item. All comments will be limited to three (3) minutes.
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Go to: www.poway .org/meeting and join using
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Call: (877) 853 - 5247
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REMOTE SPEAKERS: If viewing on line or calling in via telephone, it is highly recommended to log in to the waiting room at least 15 to 30 minutes prior to the commencement of the meeting. Persons wishing to address the Council on matters not on the agenda may do so under Public Comment. Those wishing to speak on items on the agenda may do so when the item is being considered. If you wish to speak and are joining the meeting online, please let the City Clerk know prior to the meeting cir the Steve Vaus
Mayor
John Mullin
Deputy Mayor
Dave Grosch
Council member
Caylin Frank
Councilmember
Barry Leonard
Councilmember
announcement of the item by raising your hand digitally or by submitting a chat. If you are not using your computer's audio, please remember to enter your Participant ID on your computer screen when prompted on the phone . If you choose to call in without logging in on line and you wish to speak on an item, you may press *9 when the Mayor asks for speakers at the time that the item you wish to speak on is being considered . You may speak up to three (3) minutes. The Mayor may reduce this time if there are a large number of speakers. PLEASE NOTE: Comments received via email before 3:00 p.m. the day prior to the meeting will be distributed to the City Council as well as be made available online prior to the City Council meeting.
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Agenda Materials I This agenda contains a brief summary of each item the Council will consider .
The Agenda and Agenda Packet is posted seven (7) days prior to regular City Council meetings and are available for viewing on the City's website at www .poway .org . Sign up at https://poway .org/list.asp x to receive email notifications when City Council agendas are published online. Items listed on the agenda with a "#" symbol are in preparation.
American Disabilities Act Title II I In compliance with the Americans with Disabilities Act of 1990, persons with a disability may request an agenda in appropriate alternative formats as required by Title II. Any person with a disability who requires a modification or accommodation in order -to participate in a meeting should direct such request to the City Clerk's office 858-668-4530 at least 24 hours prior to the meeting .
The City Council also sits as the City of Poway Planning Commission, Poway Housing Authority, Public Financing Authority and Successor Agency to the Poway Redevelopment Agency CALL TO ORDER:
ROLL CALL:
PLEDGE OF ALLEGIANCE:
MOMENT OF SILENCE:
PRESENTATION:
Recognition of Outgoing Council Members -
Deputy Mayor John Mullin and Council Member Dave Grosch PUBLIC COMMENT: In accordance with State law, an item not scheduled on the agenda may be brought forward by the general public for comment; however, the City Council will not be able to discuss or take action on any issue not included on the agenda . You may speak up to three (3) minutes , Speakers have one opportunity to address the Council under Public Comment. 2 of 4 Regular City Council Meeting December 6, 2022
CONSENT CALENDAR: The Consent Calendar may be enacted in one motion by the Council with a Roll Call Vote without discussion unless a Councilmember , a member of the public , or City Manager requests that an item be removed for discussion.
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the October 4, 2022, October 18, 2022 and November 15, 2022 Regular City Council Meeting Minutes
3. Adoption of Resolution to Continue the Existence of a Local Emergency Within the City of Poway Due to the Novel Coronavirus (COVID-19) Global Pandemic
4. Approval of Local Appointments List of City Council Appointed Committees for 2023
5. Memorandum of Understanding between St. Michael's Catholic Church and the City of Poway to use the Church as an Emergency Shelter in the Event of an Evacuation
6. Approval of Lease Agreement with Sportsplex, USA, Inc.
7. Replacement of Citywide Network Switches and Appropriation of Funds
8. Approval of Agreement with Fluoresco Services, LLC, for PCPA Marquee Sign Repair
9. Second Reading and Adoption of Ordinance 858 entitled "An Ordinance of the City Council of the City of Poway, California , Amending Chapter 2.18 of the Poway Municipal Code (Meetings)"
10. Acceptance of City Facilities Painting 2021-22 Project; Bid No. 22-009 with Harbor Coating & Restoration, as Complete
11. Acceptance of the FY 2022-23 Street Maintenance Project; Bid No. 22-013, with American Asphalt South, Inc., as Complete
ORDINANCES FOR INTRODUCTION: None
PUBLIC HEARINGS:
12. Adoption of an Ordinance of the City of Poway, California, Amending Poway Municipal Code (PMC) Title 15, Adopting by Reference the 2022 California Building Standards Codes with Local Amendments, Adoption of a Resolution Amending and Establishing Permit and Inspection Fees within the Fire Department Section of the Master Fee Schedule, and Determination that the Adoption of the Foregoing Amendments by Ordinance and Resolution is Exempt from the California Environmental Quality Act pursuant to CEQA Guidelines Section 15061 (b)(3) City Manager's Recommendation: It is recommended the City Council take public input, close the public hearing and introduce the Ordinance for first reading by title only, waiving further reading, and schedule the adoption for January 17, 2023, adopt the Resolution amending and establishing permit and inspection fees within the Fire Department section of the Master Fee Schedule and determine that the adoption of the foregoing amendments by Ordinance and 3 of 4 Regular City Council Meeting December 6, 2022
Resolution is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061 (b)(3).
STAFF REPORTS: None
WORKSHOPS: None
COUNCIL-INITIATED ITEMS: None
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 - (G.C. 53232(d)) CITY MANAGER ITEMS:
CITY ATTORNEY ITEMS: (Including any public report of any action taken in closed session) CLOSED SESSION:
13. Conference with Legal Counsel -Anticipated Litigation Government Code§ 54956.9(d)(2)- one (1) case
AD!OURNMENT
State of California
County of San Diego
)
) ss.
)
AFFIDAVIT OF POSTING
I, Carrie Gallagher, CMC, City Clerk of the City of Poway, hereby declare under penalty of perjury that this notice of a Regular Meeting as called by the City Council of the City of Poway was posted and provided on November 29, 2022. Said meeting to be held at 7:00 p.m., December 6, 2022, in the Poway City Council Chambers, 13325 Civic Center Drive, Poway, California. Said notice was posted on the Bulletin Board at the entrance to City Hall. ~~ Carrie Gallagher, CMC, City Clerk
4 of 4 Regular City Council Meeting December 6, 2022
December 6, 2022, Item #2
AGENDA RE PQ RT City of Poway
DATE:
TO:
FROM:
December 6, 2022
Honorable Mayor and Members of the City Council
Carrie Gallagher, City Clerk ~
(858) 668-4535 or [email protected]
CITY COUNCIL
SUBJECT: Approval of the October 4, 2022, October 18, 2022 and November 15, 2022 Regular City Council Meeting Minutes
Summary
The City Council Meeting Minutes submitted hereto for approval are:
• October 4, 2022 Regular City Council Meeting Minutes
• October 18, 2022 Regular City Council Meeting Minutes • November 15, 2022 Regular City Council Meeting Minutes The Poway City Council sits as the Poway Planning Commission, the Poway Housing Authority, the Public Financing Authority, and the Successor Agency to the Poway Redevelopment Agency.
Recommended Action:
It is recommended the City Council approve October 4, 2022, October 18, 2022 and November 15, 2022 Regular City Council Meeting Minutes
Public Notification:
None.
Attachments:
A. October 4, 2022 Regular City Council Meeting Minutes B. October 18, 2022 Regular City Council Meeting Minutes C. November 15, 2022 Regular City Council Meeting Minutes Reviewed/Approved By:
~~ Wend aserman
Assistant City Manager
1 of 22
Reviewed By:
Alan Fenstermacher
City Attorney
I
City Manager
December 6, 2022, Item #2
NOTE: These draft meeting minutes are not official until approved by the City Council at the next scheduled meeting.
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
October 4, 2022
City Council Chambers
13325 Civic Center Drive, Poway, California
(Per Government Code 54953)
(Meeting Called to Order as City Council/City of Poway Planning Commission/Poway Housing Authority/Public Financing Authority and Successor Agency to the Poway Redevelopment Agency)
CALL TO ORDER
Mayor Vaus called the Regular Meeting to order at 7:00 p.m.
ROLL CALL
Present: Barry Leonard (via teleconference), Caylin Frank, Dave Grosch, John Mullin, Steve Vaus
STAFF MEMBERS PRESENT
City Manager Chris Hazeltine; Assistant City Manager Wendy Kaserman (via teleconference); Deputy City Attorney Jayson Parsons; City Clerk Carrie Gallagher; Development Services Director Bob Manis; Finance Director Aaron Beanan; Human Resources and Risk Management Director Jodene Dunphy; Public Works Director Eric Heidemann; Director of Community Services Audrey Denham; Fire Chief Jeff Chumbley; Captain Karla Menzies, Sheriff's Department (Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City Manager, City Attorney, City Clerk and Director of Finance shall be used to indicate Mayor/Chair, Deputy MayorNice Chair, Councilmember/Director, City Manager/Executive Director, Assistant City Manager/Assistant Executive Director, City Attorney/Counsel, City Clerk/Secretary and Director of Finance/Finance Officer.)
PLEDGE OF ALLEGIANCE
Deputy Mayor Mullin led the Pledge of Allegiance.
MOMENT OF SILENCE
Mayor Vaus led a moment of silence.
PRESENTATIONS
Recognition of Public Works Employee Bryce Greschke
Recognition of Sue Herndon
Recognition of Tony Rubino
2 of22 ATTACHMENT A
December 6, 2022, Item #2
City of Poway -Minutes -October 4, 2022
PUBLIC COMMENT
Ginger Couvrette spoke in appreciation for Sue Herndon.
John Couvrette spoke in appreciation for Sue Herndon and Tony Rubino.
Yuri Bohlen spoke regarding safety concerns on Metate Trail. _./
Ibrahim Ahmed spoke regarding the County of San Diego Capital Emergency Housing Solutions Grant Program.
Alison Park spoke regarding impacts to her property due to grading and setbacks at The Farm project.
Sean Park spoke in opposition to negative impacts to his property due to The Farm project
CONSENT CALENDAR
Motioned by Deputy Mayor Mullin, seconded by Councilmember Grosch to approve Consent Calendar Items 1 through 4. Motion carried 5/0 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Disqualified:
Leonard, Frank, Grosch, Mullin, Vaus
None
None
None
None
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the July 19, 2022 Regular City Council Meeting Minutes.
3. Adoption of Resolution No. 22-072 entitled "A Resolution of the City Council of the City of Poway, California, Finding and Declaring the Continued Existence of an Emergency within the City due to the Novel Coronavirus (COVID-19) Global Pandemic"
4. Rejection of Received Proposal for the Congregate Meal Program and Catering Services Project; RFP23-002, and Direction to Staff to Re-Scope and Re-Advertise the Project Yuri Bohlen spoke on item 4; suggesting the bid process be amended to allow for awarding the project to more than one bidder.
ORDINANCES FOR INTRODUCTION
None.
ORDINANCES FOR ADOPTION
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December 6, 2022, Item #2
City of Poway -Minutes -October 4, 2022
None.
PUBLIC HEARINGS:
None.
STAFF REPORTS:
5. Endowment Campaign Feasibility Study Findings
Director of Community Services Audrey Denham introduced the item, followed by a PowerPoint presentation by Vice President of Netzel Grigsby Associates, Jeanne Schmelzer.
Ms. Denham stated the Endowment Campaign Feasibility Study conducted by Netzel Grigsby Associates (NGA) was made possible through generous financial support from the McCarthy Family Foundation. She added the study was designed to test the possibility of fund raising for an endowment fund to support the Poway Center for the Performing Arts. She thanked the Feasibility Study Task Force for volunteering their time to review the materials, identify individuals to be interviewed, secure interviews and receive the study findings. Ms. Denham stated the task force is made up of community members and representatives from other PCPA user groups as well as Councilmembers Grosch and Leonard.
Ms. Schmelzer with NGA presented an overview of the purpose of the feasibility study and its findings. She reported the purpose was to test whether or not a future endowment campaign to raise approximately $9.5m to support the PCPA would be successful. Through in-depth interviews with a diverse group of people representing different interests, NGA learned the PCPA is viewed as a community asset. They also learned there is some misunderstanding about the relationship between the City and Poway OnStage and that many individuals assumed that if they were supporting Poway OnStage, they were also supporting the PCPA.
Those surveyed said there are opportunities to improve the visibility and marketing of the PCPA and thought perhaps there are opportunities to more effectively manage the facility. While there was general support for the facility, NGA ultimately determined an endowment campaign would not be successful at this time.
Public Comment:
Yuri Bohlen spoke regarding selling naming rights to major corporations and televising performances to generate revenue.
Janet Lettang spoke in support of the Endowment Campaign Feasibility Study and many of the recommendations by Netzel Grigsby Associates.
Delta Esparza stated the Council is at a crossroads to move forward and requested they do so in support of the PCPA.
Katherine Hirsh (via teleconference) stated that although the fundraising goal is not feasible at this time, a broader more impactful strategic plan for the arts is necessary and encouraged the fostering of relationships with art supporters and local businesses.
End of Public Comment.
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Council discussion ensued regarding opportunities to better market the PCPA and its programming, the importance of gaining and maintaining the public's confidence in the City as the PCPA operator and it was suggested that it should be operated more like a business.
Additionally, City Council spoke regarding the upcoming operational assessment, the feasibility of naming rights, and offering a better variety of programming. It was stated there is still a lot of work to be done and although it is not feasible to an endowment campaign now, the steps have been identified needed for another opportunity in the future. Mayor Vaus concluded Council comments by expressing appreciation to Councilmembers Leonard and Grosch by stating he was deeply grateful for their work on the sub-committee.
No vote was taken, this was a note and file item.
6. Approval of Joint-Use Agreement between the City of Poway and Poway Unified School District for the Poway Center for the Performing Arts
Director of Community Services Audrey Denham presented the item along with a PowerPoint presentation. She stated the City of Poway and Poway Unified School District (PUSD) first entered into a Joint Use Agreement (JUA) for the Poway Center for the Performing Arts (PCPA) when the PCPA opened. Renegotiating the terms of the JUA to improve cost sharing is one component of the City's overall strategy to improve the long-term financial sustainability of the PCPA. To reflect PUSD's use of the PCPA, for many years PUSD has paid 35% of the operating costs of the facility, excluding some notable operating expenses, as well as excluding capital projects. Under the proposed terms of the new JUA, PUSD will pay 35% of all operating and capital costs with a few small exclusions. The JUA does include percentage caps on annual increases in expenditures. As part of the new JUA, PUSD will have additional access to the facility, and the City and PUSD will also partner to create a new theater internship program. Once the new agreement is approved by both the City, as well as PUSD, the City projects PUSD will be paying approximately $350,000 annually toward the PCPA operating costs and approximately $1,400,000 toward known future capital replacement projects. Ms. Denham recognized the long partnership between the City and PUSD and noted the terms of the new JUA are beneficial to both parties.
Public Comment:
Spoke in support:
Delta Esparza
Ginger Couvrette
Yuri Bohlen
Jana Johnson
JanetLettang
End of Public Comment.
Council discussion ensued. Council expressed appreciation for the long-standing partnership between the City and PUSD. Council stated the new agreement is beneficial to both parties.
It will help reduce the operating subsidy while also providing PUSD more access to the PCPA and the establishment of a new internship program. Council commended staff's continued communications with PUSD and noted ongoing communications will be important to the success of the new agreement. Council stated the PCPA and cost sharing with PUSD has 5 of22
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been a hot topic for years with the Budget Review Committee and the new Joint Use Agreement signal a positive step forward.
Motioned by Councilmember Grosch, seconded by Councilmember Leonard to approve the Joint Use Agreement between the City of Poway and the Poway Unified School District for the Poway Center for the Performing Arts and authorize the City Manager to execute all necessary documents associated with the agreement. Motion passed unanimously.
WORKSHOPS
None.
COUNCIL-INITIATED ITEMS:
None.
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 -(G.C. 53232(d))
Councilmember Leonard spoke in support of Sue Herndon and Tony Rubino.
Councilmember Grosch reported on an upcoming Poway Padres game and expressed his gratitude to Council member Leonard for their years of work together on the PCPA Subcommittee.
Deputy Mayor Mullin spoke in support of City staff for the completion of the Espola Road project.
Mayor Vaus wished Councilmember Frank good health with the pending birth of her third child, he spoke regarding three local boys having achieved Eagle Scout, the highest attainable achievement in the Boy Scouts of America program. Mayor Vaus noted the removal of the SAN DAG mileage tax as part of the 2021 Regional Transportation Plan adding its passage would have been a great burden on local families.
CITY MANAGER ITEMS
None.
CITY ATTORNEY ITEMS (Including any public report of any action taken in closed session) None.
ADJOURNMENT
The meeting was adjourned at 8:47 p.m.
6 of22
Carrie Gallagher, CMC
City Clerk
City of Poway, California
December 6, 2022, Item #2
NOTE: These draft meeting minutes are not official until approved by the City Council at the next scheduled meeting.
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
October 18, 2022
City Council Chambers
13325 Civic Center Drive, Poway, California
(Per Government Code 54953)
(Meeting Called to Order as City Council/City of Poway Planning Commission/Poway Housing Authority/Public Financing Authority and Successor Agency to the Poway Redevelopment Agency)
CALL TO ORDER
Deputy Mayor Mullin called the Regular Meeting to order at 7:00 p.m.
ROLL CALL
Present: Barry Leonard (via teleconference), Caylin Frank (Absent), Dave Grosch, John Mullin, Steve Vaus (via teleconference)
STAFF MEMBERS PRESENT
City Manager Chris Hazeltine; Assistant City Manager Wendy Kaserman; City Attorney Alan Fenstermacher; City Clerk Carrie Gallagher; Development Services Director Bob Manis; Finance Director Aaron Beanan; Human Resources and Risk Management Director Jodene Dunphy; Public Works Director Eric Heidemann; Director of Community Services Audrey Denham; Fire Chief Jeff Chumbley; Captain Karla Menzies, Sheriff's Department (Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City Manager, City Attorney, City Clerk and Director of Finance shall be used to indicate Mayor/Chair, Deputy MayorNice Chair, Councilmember/Director, City Manager/Executive Director, Assistant City Manager/Assistant Executive Director, City Attorney/Counsel, City Clerk/Secretary and Director of Finance/Finance Officer.)
PLEDGE OF ALLEGIANCE
Councilmember Grosch led the Pledge of Allegiance.
MOMENT OF SILENCE
Deputy Mayor Mullin led a moment of silence.
PRESENTATIONS
None.
7 of 22 ATTACHMENT B
December 6, 2022, Item #2
City of Poway -Minutes -October 18, 2022
PUBLIC COMMENT
Yuri Bohlen voiced appreciation for the expanded senior programs at the Mickey Cafagna Community Center.
Jim Bunner noted dissatisfaction over the Holly Oak Development Project.
Joe St. Lucas requested PCPA proceeds go towards free admission at the swim center for Poway residents.
Sharlene O'Keefe, new Executive Director of Poway On Stage, spoke regarding upcoming events.
Keith Kezer voiced frustration over bonus density law and the Holly Oak Development Project.
Arthur (Tony) Blain stated he intends to run for Poway City Council in 2024.
Mark Caskey spoke regarding ingress and egress at the McKee Orchard Project.
Janet Lettang spoke regarding upcoming PCPA events.
CONSENT CALENDAR
Deputy Mayor Mullin noted at Mayor Vaus' request:
Item #7. Summary Vacation of Portions of Certain Right-of-Way (VAC21-001) at the Westerly Terminus of Tenth Street (APN: 317-021-30) was being continued a date uncertain.
Motioned by Councilmember Grosch, seconded by Deputy Mayor Mullin to approve Consent Calendar Items 1 through 6 and 8 through 9. Motion carried 4/0/1 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Disqualified:
Leonard, Grosch, Mullin, Vaus
None
None
Frank
None
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the August 2, 2022 Regular City Council Meeting Minutes
3. Adoption of Resolution No. 22-073 entitled "A Resolution of the City Council of the City of Poway, California, Finding and Declaring the Continued Existence of an Emergency within the City due to the Novel Coronavirus (COVID-19) Global Pandemic"
4. Adoption of Resolution No. 22-074 entitled "A Resolution of the City Council of the City of Poway, California, Accepting Real Property on Durhullen Drive Lying Within County of San Diego Tract Map No. 7570"
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5. Adoption of Resolution No. 22-075 entitled "A Resolution of the City Council of the City of Poway, California, Accepting Real Property on Comuna Drive Lying Within County of San Diego Tract Map 3926-1, Map No. 9998"
6. Adoption of the 2023 City Council Meeting Calendar
7. Adoption of Resolution No. 22 076 entitled "/\ Resolution of the City Council of the City of Poway, California, Ordering the Summary Vacation of a Portion of a Public Street, To Wit:
Tenth Street, All in City of Poway Map No. 536 (Vacation No. 21 001)"
8. Acceptance of the Welcome to Poway Sign Replacement Project; Bid No. 22-004 with Tri Group Construction and Development, Inc., as Complete
9. Award of Contract to United Storm Water, Inc., for the FY2021-22 Annual Trash Capture Program
ORDINANCES FOR INTRODUCTION
Mayor Vaus recused himself on this item and departed the meeting virtually at 7:28 p.m.
10. Proposed Amendment to Section 2.04.020 of the Poway Municipal Code to Increase Mayor and City Councilmember Salaries and Proposed Increase to Mayor and Councilmember Mileage and Cellphone Reimbursement Allowances
City Attorney Alan Fenstermacher presented the report. He stated Council salaries are established by Government Code, determined by population which allow for a maximum 5 percent increase every year. He noted a salary increase has not been considered since 2018 thus allowing Council to consider a 20 percent maximum increase tonight in compliance with CA Government Code. Should Council approve the salary changes, they would not take effect until January 2023. In addition, he noted mileage and phone reimbursements had not been adjusted for several years either. In addition to the ordinance adjusting Mayor and Council salaries, a resolution was also prepared for the City Council to consider that would adjust mileage and phone reimbursement by 20 percent. The resolution also would not take effect until 2023.
Public Comment:
Yuri Bohlen spoke in support of a Mayor and Council salary increase.
Pete Neild (via teleconference) requested postponement of this item to a non-election year and reconsideration of funds dedicated to any salary increases.
End of Public Comment.
Council discussion ensued.
City Clerk Gallagher titled the Ordinance into the record.
Motioned by Councilmember Leonard, seconded by Councilmember Grosch to introduce Ordinance No. 857 entitled, "An Ordinance of the City Council of the City of Poway, California, Amending Section 2.04.020 of the Poway Municipal Code to Increase 9 of22
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Mayor and Council Compensation" and schedule adoption of the Ordinance for November 15, 2022. Motion carried 3/1/1 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Leonard, Grosch, Mullin
None
Vaus
Frank
Disqualified: None
Motioned by Councilmember Leonard, seconded by Councilmember Grosch to adopt Resolution No. 22-077 entitled, "A Resolution of the City Council of the City of Poway, California, Amending Mileage and Phone Cost Reimbursement Allowances for Mayor and City Council." Motion carried 3/1/1 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Leonard, Grosch, Mullin
None
Vaus
Frank
Disqualified: None
Mayor Vaus returned to the meeting virtually 7:42 p.m.
ORDINANCES FOR ADOPTION
None.
PUBLIC HEARINGS:
11. FY 23-24 Community Development Block Grant Program
Deputy Mayor Mullin opened the Public Hearing at 7:43 p.m.
Senior Management Analyst Marie Sanders presented the report.
Public Comment:
None.
End of Public Comment.
Deputy Mayor Mullin closed the Public Hearing at 8:45 p.m.
Council discussion ensued.
Motioned by Councilmember Grosch, seconded by MayorVaus to: 1) Adopt Resolution No. 22-078 entitled, "A Resolution of the City Council of the City of Poway, California, Authorizing the Submission of Applications for the Community Development Block Grant Program for Fiscal Year 2023-2024"; 2) Authorize the appropriation of $180,344 to the CDBG Fund (F2410) from the General Fund (F1000), as a loan, to fund the proposed FY2023-24 CDBG program upon approval by the County; and 3) Authorize 10 of 22
December 6, 2022, Item #2
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the City Manager to execute all necessary contracts with the County. Motion carried unanimously.
STAFF REPORTS:
12. Replacement of Two Type 1 Fire Engines and Appropriation of Funds Deputy Fire Chief Brian Mitchell presented the report along with a PowerPoint presentation.
He stated tonight's request is for funding to replace two type one frontline fire engines at an estimated cost of $1,912,659.82. Staff is bringing forward this recommendation to purchase the two fire engines now because there is the opportunity to save approximately $119,000 by purchasing the engines ahead of a manufacturer's increase in November. To achieve the savings and make the purchase prior to November 1, staff is also recommending waiving the City's formal bidding procedures. Deputy Chief Mitchell explained one of the engines has already exceed the recommended front line service of 15 years and the second will exceed the recommended front line years of service by the time the City receives delivery of the two fire engines in 2025. While the City annually sets aside funding for the purchase of replacement vehicles and equipment, the replacement costs of the fire engines do exceed what has been set aside to date for the replacement purchases. In addition to approval of the purchase, staff is also requesting Council approval of an appropriation of $564,724.08 to make up the difference.
Public Comment:
Pete Neild (via teleconference) spoke in support of the item.
End of Public Comment.
Council discussion ensued. In response to Council questioning, Finance Director Aaron Beanan stated the cost associated with the purchase outweighs the risk of not making the purchasing. Council concurred that providing Poway Fire with the tools they need are critical to ensuring public safety.
Motioned by Councilmember Grosch, seconded by Mayor Vaus to adopt Resolution No. 22-079 entitled, "A Resolution of the City Council of the City of Poway, California, Authorizing the City Manager to Execute a Purchase Agreement for Two New Type 1 Fire Engines and an Appropriation of Funds". Motion carried unanimously.
13. Water Infrastructure Improvement Program Update
Principal Civil Engineer -Utilities Shadi Sarni presented the item along with a PowerPoint presentation. Ms. Sarni provided an update on the Water Infrastructure Improvement Program (Program). She explained that the Program has three major components, including the Clearwell Bypass Project, the Clearwell Replacement Project and the Treated Water Facilities Project. She noted the Program will provide the City's water system with more resiliency and reliability. Ms. Sarni explained the Clearwell Bypass Project is substantially complete and was completed under budget. Utilities staff is currently fine tuning the system in preparation for fully transitioning to use of the new temporary treated water storage tanks and taking the existing Clearwell offline to move into the next phase of the Program which is the Clearwell Replacement Project. The current Clearwell will be replaced by two permanent above ground storage tanks. Once the existing Clearwell is removed, additional geotechnical work will be 11 of 22
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performed at the site. Staff anticipates bidding the Clearwell Replacement Project in early 2023. Ms. Shadi also described the final phase of the Water Infrastructure Program which will include the constructed of two treated water facilities that will give the City the flexibility to accept treated water in the future if needed.
Public Comment:
Yuri Bohlen inquired on a potential date of full completion.
End of Public Comment.
Council discussion ensued on the consequences of an aging infrastructure. Ms. Sarni stated the project completion is anticipated in 2025 and she added Clearwell bypass completion means testing has begun and will be going offline slowly with testing to continue for 30 days.
Council noted the project is on time and under budget.
City Council provided input; no action was taken.
WORKSHOPS
None.
COUNCIL-INITIATED ITEMS:
None.
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 -(G.C. 53232(d))
Councilmember Grosch commended Public Works staff on their great work on City roads and parks, the ongoing water infrastructure planning, Regional Solid Waste Association (RSWA) and LMD work throughout the Covid 19 pandemic, and he mentioned staff's quick response to a multitude of emergencies over the years and stated the job never goes undone.
Deputy Mayor Mullin concurred with Councilmember Grosch's comments.
Mayor Vaus thanked Deputy Mayor Mullin for running tonight's meeting in his absence and he extended his best wishes to Councilmember Frank and her husband Brandon on the birth of their third child.
CITY MANAGER ITEMS
None.
CITY ATTORNEY ITEMS (Including any public report of any action taken in closed session) None.
ADJOURNMENT
The meeting was adjourned at 8:23 p.m.
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December 6, 2022, Item #2
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City of Poway -Minutes -October 18, 2022
Carrie Gallagher, CMC
City Clerk
City of Poway, California
December 6, 2022, Item #2
NOTE: These draft meeting minutes are not official until approved by the City Council at the next scheduled meeting.
CITY OF POWAY
CITY COUNCIL REGULAR MEETING
MINUTES
November 15, 2022
City Council Chambers
13325 Civic Center Drive, Poway, California
(Per Government Code 54953)
(Meeting Called to Order as City Council/City of Poway Planning Commission/Poway Housing Authority/Public Financing Authority and Successor Agency to the Poway Redevelopment Agency)
CALL TO ORDER
Mayor Vaus called the Regular Meeting to order at 7:03 p.m.
ROLL CALL
Present: Barry Leonard, Caylin Frank (via teleconference), Dave Grosch, John Mullin, Steve Vaus
STAFF MEMBERS PRESENT
City Manager Chris Hazeltine; Assistant City Manager Wendy Kaserman; City Attorney Alan Fenstermacher; City Clerk Carrie Gallagher; Development Services Director Bob Manis; Finance Director Aaron Beanan; Human Resources and Risk Management Director Jodene Dunphy; Public Works Director Eric Heidemann; Director of Community Services Audrey Denham; Fire Chief Jeff Chumbley; Captain Karla Menzies, Sheriff's Department. (Note: Hereinafter the titles Mayor, Deputy Mayor, Councilmember, City Manager, Assistant City Manager, City Attorney, City Clerk and Director of Finance shall be used to indicate Mayor/Chair, Deputy MayorNice Chair, Councilmember/Director, City Manager/Executive Director, Assistant City Manager/Assistant Executive Director, City Attorney/Counsel, City Clerk/Secretary and Director of Finance/Finance Officer.)
PLEDGE OF ALLEGIANCE
Mayor Vaus led the Pledge of Allegiance.
MOMENT OF SILENCE
Mayor Vaus led a moment of silence.
PRESENTATIONS
None.
14 of 22 ATTACHMENT C
December 6, 2022, Item #2
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PUBLIC COMMENT
Yuri Bohlen thanked outgoing Councilmembers and Mayor Vaus for their service and congratulated Mayor Vaus and Brian Pepin and Peter De Hoff on anticipated election wins.
Janet Lettang shared upcoming scheduled events at the Poway Center for the Performing Arts (PCPA).
Andrew Vasquez expressed concerns over Holly Oak/McKee Orchard Development.
Bernadette Simi expressed dissatisfaction over Holly Oak/McKee Orchard Development and requested Council consider placing an item on a future agenda to further discuss resident complaints.
At Mayor Vaus's request. in response to public comment, City Attorney Alan Fenstermacher provided information about the time period in which to file a request for consideration of the approval of McKee Orchard Development. He noted the project was property advertised and approved by the City Council. He said no requests for reconsideration were filed in accordance with the timeframe process set forth in the Poway Municipal Code. He added the City cannot bring the project back for reconsideration without violating due process rights and other legal rules unless new information would warrant reconsideration and Poway Municipal Code procedures must be followed to do so.
Additionally, at Mayor Vaus's request, in response to public comment, Development Services Director Bob Manis stated there is no evidence of any grave site at the McKee Orchard project site. He stated surface testing was completed prior to approval and noted the City added CEQA Mitigation Measures to include a monitor on site when grading begins however, no grading permit has been issued at this time.
William J. Bertch voiced concerns over the obstruction of residential views due to The Farm Development.
Kristina Shahade expressed concerns over grading and elevation changes at The Farm Development.
Carl Browning expressed concerns over grading and elevation changes at The Farm Development and asked for accountability.
Vanessa Springett expressed concerns over grading and elevation changes at The Farm Development.
Alison Park spoke regarding concerns over grading and elevation changes at the Farm Development, she inquired on amending the Poway Municipal Code to include a "Significant Change Process".
At Mayor Vaus's request, in response to public comment, Development Services Director Bob Manis stated the Farm Specific Plan did not include elevations however the Tentative Map did which was approved concurrently with the Specific Plan. The Tentative Map included all elevations, conceptual grading in addition to slope and pad elevations. Mr. Manis also noted, staff approves all grading plans as they are submitted to ensure they comply with the approved plans. 15 of 22
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In response to Mayor Vaus's request, City Attorney Alan Fenstermacher spoke regarding developer accountability. Mr. Fenstermacher stated the City is responsible for ensuring development complies with approved plans and all conditions of approval. Mr. Fenstermacher added Code Enforcement action could be initiated if approved conditions were not adhered to.
CONSENT CALENDAR
Motioned by Deputy Mayor Mullin, seconded by Councilmember Leonard to approve Consent Calendar Items 1 through 15. Motion carried 5/0 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Leonard, Frank, Grosch, Mullin, Vaus
None
None
None
Disqualified: None
Motioned by Deputy Mayor Mullin, seconded by Councilmember Leonard to approve Consent Calendar Item 16. Motion carried 4/0/1 by the following roll-call vote:
Ayes:
Noes:
Abstained:
Absent:
Disqualified:
Leonard, Frank, Grosch, Mullin
None
Vaus
None
None
1. Approval of Reading by Title Only and Waiver of Reading in Full of Ordinances on this Agenda
2. Approval of the August 16, 2022 and September 20, 2022 Regular City Council Meeting Minutes and the October 24, 2022 Special Meeting Minutes
3. Adoption of Resolution No. 22-080 entitled, "A Resolution of the City Council of the City of Poway, California, Finding and Declaring the Continued Existence of an Emergency within the City due to the Novel Coronavirus (COVID-19) Global Pandemic"
4. Approval of the Local Road Safety Plan
5. Adoption of Resolution No. 22-081 entitled, "A Resolution of the City Council of the City of Poway, California, Authorizing the Acceptance of Grant Funds Through the Urban Area Security Initiative Grant Program and Appropriation of Funds"
6. Adoption of Resolution No. 22-082 entitled, "A Resolution of the City Council of the City of Poway, California, Authorizing Participation and the Acceptance of Funds Through the 2021 State Homeland Security Grant Program"
7. Acceptance of Hazardous Storage Units Removal and Replacement Project; Bid No. 22-002 with Fleming Environmental Inc., as Complete
8. Acceptance of the Fire Station 3 HVAC Controls Replacement Project; with Sunbelt Controls, Inc., as Complete
9. Approval of Final Map for Tentative Tract Map 20-003 (Fairfield Subdivision); (APNs: 317- 490-55 & 317-490-69)
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Yuri Bohlen spoke on item #9, he voiced objection to Bonus Density Laws and provided contact information for Governor Gavin Newsom for the public to voice comments or concern.
10. Adoption of Resolution No. 22-083 entitled, "A Resolution of the City Council of the City of Poway, California, Adopting an Amended Conflict of Interest Code Updating Designated Employees and Officers and Repealing Resolution No. 20-074"
11. City's Investment Report as of September 30, 2022
12. Investment Policy Review
13. Acceptance of the FY 2021-22 Street Overlay Project; Bid No. 22-011 with Hazard Construction ENGR, LLC, as Complete
14. Approval of Consultant Agreement with STC Traffic, Inc. for Design Services for the Poway Road Safety Improvements Project; RFP No. 23-005
15. Award of Contract for the Lake Poway Recreation Area Live Rainbow Trout Stock; Bid No. 23-004
16. Second Reading and Adoption of Ordinance 857 entitled "An Ordinance of the City Council of the City of Poway, California, Amending Section 2.04.020 of The Poway Municipal Code to Increase Mayor and Council Compensation"
ORDINANCES FOR INTRODUCTION
17. First Reading of Ordinance Amending Chapter 2.18 (Meetings) City Attorney Alan Fenstermacher presented the item stating this proposed amendment is a minor cleanup change to the Municipal Code thus removing a separate item on the agenda for Ordinance Second Reading and Adoption and move Second Reading and Adoption onto the Consent Calendar.
Public Comment:
None.
End of Public Comment.
Council discussion ensued.
As requested by the Mayor, City Clerk Gallagher titled the Ordinance.
Motioned by Mayor Vaus, seconded by Deputy Mayor Mullin to introduce Ordinance No. 858 entitled, "An Ordinance of the City Council of the City of Poway, California, Amending Chapter 2.18 of the Poway Municipal Code {Meetings)" and schedule adoption of the Ordinance for December 6, 2022. Motion carried 510 by the following roll-call vote:
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Ayes: Leonard, Frank, Grosch, Mullin, Vaus
Noes: None
Abstained: None
Absent: None
Disqualified: None
ORDINANCES FOR ADOPTION
None.
PUBLIC HEARINGS:
18. Conditional Use Permit (CUP) 21-004; an amendment to CUP 13-004 to Allow the Expansion to an Existing Veterinary Clinic located at 14861 Pomerado Road; APN: 314-710-30 Mayor Vaus opened the Public Hearing at 7:42 p.m.
Associate Planner JohnWilly Aglupos presented the report along with a PowerPoint presentation.
Public Comment:
None.
End of Public Comment.
Mayor Vaus closed the Public Hearing at 7:45 p.m.
Council discussion ensued. In response to Council questions, a representative for the applicant stated the prior business owner admittedly expanded the facility without an approved amendmentto their CUP. The previous owner sold his business to the current owner and as a Condition of Approval (CUP) of sale, the new owner required the previous owner to bring the expansion into compliance.
Motioned by Mayor Vaus, seconded by Councilmember Leonard to adopt Resolution No. 22-084 entitled, "A Resolution of the City Council of the City of Poway, California, Approving Conditional Use Permit 21-004 to Allow the Expansion to an Existing Veterinary Clinic; Assessor's Parcel Number 314-710-30". Motion carried unanimously.
19. Resolution Adopting an Amendment to the TransNet Local Street Improvement Program of Projects for Fiscal Years 2022-23 through 2026-27
Mayor Vaus opened the Public Hearing at 7:50 p.m.
Associate Civil Engineer Andrea Thomas presented the report.
Public Comment:
None.
End of Public Comment.
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Mayor Vaus closed the Public Hearing at 7:52 p.m.
Council discussion ensued.
/
Motioned by Deputy Mayor Mullin, seconded by Councilmember Leonard to 1) adopt Resolution No. 22-085 entitled, "A Resolution of the City Council of the City of Poway, California, Adopting an Amendment to the TransNet Local Street Improvement Program of Projects for Fiscal Years 2022-23 Through 2026-27", and 2) amend the FY 2022-23 Capital Improvement Program Budget to reflect an increase in projected TransNet revenue of $229,000 and appropriate those funds to the Annual Street Overlay project ST023. Motion carried unanimously.
STAFF REPORTS:
20. Consultant Agreement with Webb Management for PCPA Operational Analysis and Fee Study, RFP 23-003
Director of Community Services Audrey Denham presented the item. She stated great progress has been made at the Poway Center for the Performing Arts (PCPA) as the City works towards creating a more sustainable operating model. She noted the recent completion of the Endowment Campaign Feasibility Study and renegotiation of a mutually beneficial Joint Use Agreement with the Poway Unified School District. She stated the next project is the Operational Analysis and Fee Study. After reviewing the five responsive bids received in response to the Request for Proposals, three finalists were interviewed and ultimately Webb Management Services was selected. The selection was based on their extensive experience with performing arts centers similar to the PCPA. Webb Management also has a local team member who has worked on various projects in San Diego County and is familiar with the PCPA. The selection process included City staff and the PCPA subcommittee made up of Councilmembers Leonard and Grosch. Webb will review all aspects of the PCPA operations including booking, ticketing, 1concessions, policies and procedures, fee structures and user agreements, and then recommend best practices and/or other operational changes to improve efficiency, decrease the operating subsidy and generate additional revenue for the facility.
The study will cost $47,500 and take approximately three to four months to complete with completion expected in early April.
Public Comment:
Janet Lettang spoke in support of a Consultant Agreement with Webb Management and volunteered herself, Kate Hirsch and Jana Johnson, if needed, to collaborate on the project as community advocates for the PCPA.
End of Public Comment.
Council concurred this agreement represents big step forward for the PCPA and is looking forward to finding ways to decrease costs by operating more efficiently, incorporating industry best practices, identifying opportunities for improvement, and revenue enhancement. It was noted community involvement has been good and Council hopes interest will continue.
Motioned by Councilmember Leonard, seconded by Councilmember Grosch to approve the Consultant Agreement with Webb Management Services, Inc., authorize 19 of 22
December 6, 2022, Item #2
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the City Manager to execute all necessary documents associated with the Agreement, and appropriate funds for the completion of the study. Motion carried unanimously.
21. Approving a CalPERS 180-day Waiting Period Exception to Hire a Retired Annuitant Director of Human Resources and Risk Management Jodene Dunphy presented the item.
Public Comment:
None.
End of Public Comment.
Motioned by Mayor Vaus, seconded by Councilmember Grosch to adopt Resolution No. 22-086 entitled, "A Resolution of the City Council of the City of Poway, California, for a 180-Day Waiting Period Exception to Hire a Retired Annuitant Pursuant to Government Codes Sections 7522.56 and 21224". Motion carried unanimously.
22. Summary Vacation of Portions of Certain Right-of-Way (VAC21-001) at the Westerly Terminus of Tenth Street (APN: 317-021-30)
Associate Civil Engineer Sara Trunzo presented the item along with a PowerPoint presentation. She provided slides depicting the site location including adjacent neighbors. She noted 10th Street was dedicated and accepted by the County of San Diego in 1888 but was never developed nor used by vehicular traffic. According to the San Diego County's reversionary rights procedures, if the vacation is approved, the specified portion of the right of way will become part of the Chinmaya Mission property, owner of the parcel to the north who requested the vacation of this land. Following the vacation, a 15-foot access easement will be dedicated to preserve California Department of Fish and Wildlife access to the state owned parcel at the west end of 10th Street, and an easement will also be dedicated to cover 12203 Leona Lane's existing driveway and fire truck turnaround which are currently within the 10th street right of way.
Ms. Trunzo noted pursuant to the City's Wildfire Defensible Space Program, no habitat exists in the area to be vacated due to clearing for fire fuel management which has been taking place since the Chinmaya Mission Spiritual Center was developed in 2014. After the vacation, Chinmaya Mission will continue to clear vegetation within the portions of the vacated right of way that is located within the 100-foot fire fuel management defensible space buffer around the existing structure on their property.
Ms. Trunzo stated she has been in communication with residents and neighbors ahead of tonight's meeting to answer their questions. She noted this item is unrelated to a proposed subdivision in the vicinity which will be brought to City Council at a yet to be determined date in the future.
Public Comment:
Jeffrey Schmidt (via teleconference) spoke in support of wildlife and in opposition to a Summary Vacation at this Right-of-Way location.
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Rick Coburn spoke in opposition to the item stating biological effects on wildlife as the reason he believes the Summary Vacation should be denied.
Lori Grennan spoke in support of wildlife and in opposition to Summary Vacation at this Right of-Way location.
End of Public Comment.
Council confirmed this is land which the City was given rights to but has determined has no use for and is returning it to the original owner. Council also confirmed that no environmental impact would occur tonight because no physical changes to the environment would take place with this dedication and reiterated the state owns the land at the end of the road and the trail and easement to Fish and Wildlife would need to remain open and no fence could be built unless approved by Council in the future.
Associate Civil Engineer Trunzo stated Fish and Wildlife voiced no concerns over this vacation and noted a dedicated easement for the trail on existing Chinmaya site.
Council noted if Chinmaya wants to come back and build on this vacation they would have to return to Council for approval. Council agreed to add a Condition of Approval to the Resolution to include "No physical improvements to the vacated property may be made prior to an amendment to the CUP which is required to come to City Council for approval".
Development Services Director Bob Manis reiterated; defensible space clearing is still required.
Motioned by Mayor Vaus, seconded by Deputy Mayor Mullin to adopt Resolution No. 22-087 entitled, "A Resolution of the City Council of the City of Poway, California, Ordering the Summary Vacation of a Portion of a Public Street, to Wit: Tenth Street, All in City of Poway Map No. 536 (Vacation No. 21-001 )" amended to include: no physical improvements to the vacated property prior to an amendment to the CUP which is required to come to City Council for approval. Motion carried unanimously.
WORKSHOPS
None.
COUNCIL-INITIATED ITEMS:
None.
COUNCIL COMMITTEE REPORTS and ANNOUNCEMENTS: Pursuant to AB1234 -(G.C. 53232(d))
Councilmember Leonard spoke about the recent Kiwanis pancake breakfast and provided information on the upcoming Kiwanis Holiday with Heroes event.
Councilmember Frank announced the birth of her third child on October 11th.
Councilmember Grosch congratulated Mayor Vaus and future Councilmembers Pepin and De Hoff on their election wins.
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Deputy Mayor Mullins reiterated Councilmember Grosch's comments by congratulating Mayor Vaus and future Councilmembers Pepin and De Hoff on their election wins.
Mayor Vaus spoke regarding his attendance at a recent Fire Fighters Badge Ceremony held here at City Hall, he reminded the public of the sacrifices made by both the sworn personnel and their families.
CITY MANAGER ITEMS
None.
Mayor Vaus recessed the meeting into Closed Session at 8:37 p.m.
CITY ATTORNEY ITEMS (Including any public report of any action taken in closed session)
23. Conference with Real Property Negotiator (Gov. Code § 54956.8) Property: APNs 317-281-17, 317-281-18 & 317-280-46
City Negotiator: City Manager Chris Hazeltine
Persons with whom the City Negotiator May Negotiate: Sean Melvin, Chief Executive Officer, Sportsplex, USA, Inc.
Under Negotiation: Lease and Terms of Use
City Attorney Fenstermacher stated, no reportable action.
ADJOURNMENT
The meeting was adjourned at 9:04 p.m.
22 of 22
Carrie Gallagher, CMC
City Clerk
City of Poway, California
December 6, 2022, Item #3
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AG EN DA REPORT City of Poway
December 6, 2022
Honorable Mayor and Members of the City Council
Jeff Chumbley, Fire Chief r
Jeff Chumbley, Fire Chief
(858) 668-4461 or [email protected]
CITY COUNCIL
Resolution to Continue the Existence of a Local Emergency Within the City of Poway Due to the Novel Coronavirus (COVID-19) Global Pandemic The Novel Coronavirus (COVID-19) global pandemic continues to impact economic and social segments of the United States. Federal, state, and county directives, mandates and orders to manage COVID-19 have, and continue to, impact Poway residents, businesses and visitors. On March 18, 2020, the City Council approved a resolution proclaiming a local emergency. The adopted resolution requires the City Council to either continue the emergency action or declare the emergency ended at each regular meeting.
Recommended Action:
It is recommended the City Council approve a resolution continuing the Proclamation of Local Emergency. This action requires a four-fifths (4/5) vote of the City Council.
Discussion:
The COVID-19 global pandemic continues to impact business, education, healthcare, military, and social segments of the United States. Federal, state, and county directives, mandates, orders and guidelines have been issued to manage COVID-19. Efforts continue to focus on re-opening the economy and relaxing restrictions. In response to the COVID-19 global pandemic, and its impact on Poway, the City Manager, serving as Director of Emergency Services for the City of Poway, proclaimed a local emergency on March 13, 2020. On March 18, 2020, the City Council approved Resolution No. 20-013 ratifying the City Manager's Proclamation of Local Emergency. The City Council approved to continue the emergency action in 2020 on April 7, April 21, May 5, May 19, June 2, June 16, July 7, July 21, August 4, September 1, September 15, October 6, October 20, November 17, December 1, and December 15. In 2021, the City Council approved to continue the emergency action on January 19, February 2, February 16, March 2, March 16, April 6, April 20, May 4, May 18, June 1, June 15, July 20, August 3, August 17, September 7, October 5, October 19, November 2, November 16, and December
7. In 2022, the City Council approved to continue the emergency action on January 18, February 1, February 15, March 1, March 15, April 5, April 19, May 3, May 17, June 7, June 21, July 19, August 2, 1 of 5
December 6, 2022, Item #3
August 16, September 20, October 4, October 18 and November 15. The adopted resolution requires the City Council to either continue the emergency action or declare the emergency ended at each regular meeting. Continuing the local emergency, in addition to being consistent with the County of San Diego, also allows the City to continue to be eligible for federal, state, and county funding opportunities related to COVID-19 and tied to having a declaration of a local emergency in place.
Based on a recent announcement by the State of California that it plans to end the COVID-19 State of Emergency on February 28, 2023, the City plans to end its local emergency at the February 21, 2023 City Council Meeting.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
As of November 21, 2022, City costs to respond to COVID-19 are estimated at $1,120,760. These costs specifically relate to FEMA eligible expenditures. The total fiscal impact is unknown at this time. Per the City Council adopted General Fund Reserve policy, the City maintains a General Fund Reserve of 45 percent of the budgeted annual General Fund operating expenditures, or $20,393,896 as of June 30, 2021. Within that 45 percent, $13,179,618 is set aside for Extreme Events/Public Safety. Staff believes some of the prior expenditures are recoverable under State and Federal Disaster programs. Amounts recovered under these programs will be used to replenish the General Fund reserve. Pursuant to the reserve policy, staff will return with a plan to replenish any General Fund reserves not replenished under a State or Federal Disaster program. Staff will recommend applicable budget adjustments prior to the completion of the current fiscal year.
In addition to using reserves to respond to COVID-19, as mentioned above, on April 20, 2020, the City Council approved $2,000,000 to fund the PEARL program for small businesses. The PEARL program's goal was to offer financial assistance to small businesses located in Poway by serving as a financial bridge to businesses while they were awaiting state and federal funding provided in response to the pandemic. Based on staffs review, 35 loans totaling $1,328,118 were approved and four loans totaling $148,000 have been repaid. The reserve fund will be replenished from the repayment of PEARL loans over a three-year period following the end of the local COVID-19 emergency. This period falls within the General Fund Reserve Policy's direction to fully replenish reserves within five years of use.
Public Notification:
None.
Attachments:
A. Resolution
B. Proclamation of Local Emergency
Reviewed/Approved By:
Assistant City Manager
2 of 5
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
City Manager
December 6, 2022, Item #3
RESOLUTION NO. 22-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, FINDING AND DECLARING THE
CONTINUED EXISTENCE OF AN EMERGENCY WITHIN THE
CITY DUE TO THE NOVEL CORONAVIRUS (COVID-19) GLOBAL
PANDEMIC
WHEREAS, the Novel Coronavirus (COVID-19) global pandemic in the City of Poway, commencing on or about January 24, 2020 that creates a threat to public health and safety; WHEREAS, Government Code section 8630 and Poway Municipal Code (PMC) Section
2.12.060 empower the City Manager, acting as the Director of Emergency Services, to proclaim the existence of a local emergency when the City is affected by a public calamity, and the City Council is not in session;
WHEREAS, on March 13, 2020, the City Manager, acting pursuant to Government Code section 8630 and PMC section 2.12.060, proclaimed the existence of a local emergency based on conditions of extreme peril to the health and safety of persons caused by the Novel Coronavirus (COVI D-19) global pandemic;
WHEREAS, on March 18, 2020, the City Council, acting pursuant to Government Code section 8630 and PMC section 2.12.065, ratified the existence of a local emergency within seven (7) days of a Proclamation of Local Emergency by the City Manager; WHEREAS, the City Council, acting pursuant to PMC section 2.12.065, approved extending the emergency declaration during regularly scheduled meetings in 2020 on April 7, April 21, May 5, May 19, June 2, June 16, July 7, July 21, August 4, September 1, September 15, October 6, October 20, November 17, December 1, December 15, and in 2021 on January 19, February 2, February 16, March 2, March 16, April 6, April 20, May 4, May 18, June 1, June 15, July 20, August 3, August 17, September 7, October 5, October 19, November 2, November 16, December 7, and in 2022 on January 18, February 1, February 15, March 1, March 15, April 5, April 19, May 3, May 17, June 7, June 2( July 19, August 2, August 16, September 20, October 4, October 18 and November 15;
WHEREAS, Public Contract Code Section 20168 provides that the City Council may pass by four-fifths (4/5) vote, a resolution declaring that the public interest and necessity demand the immediate expenditure of public money to safeguard life, health, or property; WHEREAS, upon adoption of such resolution, the City Manager may expend any sum required in the emergency and report the same to the City Council in accordance with Public Contract Code Section 22050;
WHEREAS, if such expenditure is ordered, the City Council shall review the emergency action at each regular meeting, to determine if there is a need to continue the action or if the Proclamation of Local Emergency may be terminated; and
WHEREAS, such the Novel Coronavirus (COVID-19) global pandemic constitute an emergency within the terms of Public Contract Code Sections 20168 and 22050 which requires that the City Manager be able to act quickly and without complying with the notice and bidding procedures of the Public Contract Code to safeguard life, health, or property. 3 of 5 ATTACHMENT A
December 6, 2022, Item #3
Resolution No. 22-
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway hereby finds and declares:
SECTION 1: An emergency continues to exist within the City as the result of the Novel Coronavirus (COVID-19) global pandemic; and
(a) The continuing threat of the Novel Coronavirus (COVID-19) global pandemic requires that the City be able to expend public money in order to safeguard life, health, or property;
(b) The City Manager, as the City's Personnel Officer, is authorized to take actions necessary to alter employee leave policies and ensure a safe and healthy workforce;
(c) The City Manager is authorized to safeguard life, health, or property without complying with notice or bidding procedures; and (d) Once such expenditure is made, the City Manager shall report the conditions to the City Council at each regular meeting, at which time the City Council shall either continue the emergency action or declare the emergency ended.
SECTION 2: This Proclamation of Local Emergency and all subsequent resolutions in connection herewith shall require a four-fifths (4/5) vote of the City Council.
PASSED, ADOPTED AND APPROVED at a Regular Meeting of the City Council of the City of Poway, California on the 6th day of December, 2022 by the following vote, to wit:
AYES:
NOES_:
ABSENT:
DISQUALIFIED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
4 of 5
December 6, 2022, Item #3
PROCLAMATION OF LOCAL EMERGENCY
WHEREAS, section 2.12.060 of the Poway Municipal Code empowers the Director of Emergency Services to proclaim the existence or threatened existence of a local emergency when the City is affected or likely to be affected by a public calamity and the City Council is not in session;
WHEREAS, the City Manager, as Director of Emergency Services of the City of Poway, does hereby find that conditions of extreme peril to the safety of persons and property have arisen within the City of Poway, caused by the Novel Coronavirus (COVID-19) commencing on January 24, 2020;
WHEREAS, that the City Council of the City of Poway is not in session and cannot immediately be called into session; and
WHEREAS, this Proclamation of Local Emergency will be ratified by the City Council within seven days of being issued.
NOW, THEREFORE, IT IS HEREBY PROCLAIMED by the Director of Emergency Services for the City of Poway, that a local emergency now exists throughout the City and that said local emergency shall be deemed to continue to exist until its termination is proclaimed by the City Council;
IT IS FURTHER PROCLAIMED AND ORDERED that during the existence of said local emergency the powers, functions, and duties of the emergency organization of this City shall be those prescribed by state law, ordinances, and resolutions of this City, and by the City of Poway Emergency Plan; and
IT IS FURTHER PROCLAIMED AND ORDERED that a copy of this Proclamation of Local Emergency be forwarded to the State Director of the Governor's Office of Emergency Services with a request that;
1. The State Director find the Proclamation of Local Emergency acceptable in accordance with provisions of the Natural Disaster Assistance Act; and
2. The State Director forward this Proclamation, and request for a State Proclamation and Presidential Declaration of Emergency, to the Governor of California for consideration and action.
PASSED AND ADOPTED by the Director of Emergency Services for the City of Poway this 13th day of March 2020.
3{ t -;,/ '2t:12-o S L-V ~--.----=-----=----P r>ate
1 and Time T
Director of Emergency Services
5 of 5 ATTACHMENT B
December 6, 2022, Item #4
AGENDA REPORT CityofPoway
DATE:
TO:
FROM:
December 6, 2022
Honorable Mayor and Members of the City Council
Carrie Gallagher, City Clerk tA~
(858) 668-4535 or [email protected]
CITY COUNCIL
SUBJECT: Approval of Local Appointments List of City Council Appointed Committees for 2023 Summary:
The City Clerk has prepared the annual Local Appointments List required by Government Code Section 54972. The Code requires that on or before December 31st of each year, the legislative body shall prepare an appointments list of all regular and ongoing boards, commissions, and committees which are appointed by the legislative body of the local agency.
Recommended Action:
It is recommended the City Council approve the Local Appointments List for 2023 and authorize the City Clerk to post in accordance with Government Code Section 54973.
Discussion:
Government Code Sections 54970-54974, also known as the Maddy Act, require that the City Council prepare and post a Local Appointments List on or before December 31st of each year of all regular and ongoing boards, commissions, and committees. The list must contain the following information:
1. All appointive terms which will expire during the next calendar year;
2. The name of the incumbent appointee;
3. The date of appointment and the date the term expires; and
4. The necessary qualifications for the position
This information allows any resident the opportunity to apply to serve on a Committee. The City currently has two Committees that fall under the provisions of this section. They are the Budget Review Committee (BRC) and the Parks and Recreation Advisory Committee (PRAC) in which committee members serve two-year terms. Due to expiring terms in December 2022 and one resignation due to the committee memb!=!r moving out of state, the City will have four (4) vacancies on the BRC and five (5) vacancies on the PRAC. Application material will be available on the City's website and in the City Clerk's Office. The application process will open on Monday, January 9, 2023 and applications will be accepted through 5:30 p.m. on Thursday, February 9, 2023. Appointments are tentatively scheduled to be made at the March 7, 2023 City Council meeting. Any other vacancies 1 of 3
December 6, 2022, Item #4
that occur during 2023 would be unscheduled and a notice would be posted in accordance with Government Code Section 54974.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
None.
Public Notification:
Upon approval, the Local Appointments List will be posted on the City's website and outside City Hall and shall remain posted for the full calendar year to remain in compliance with the Maddy Act.
Attachments:
A. Local Appointments List 2023
Reviewed/ Approved By:
Wendyserman
Assistant City Manager
2 of3
Reviewed By:
Alan Fenstermacher
City Attorney City Manager
December 6, 2022, Item #4
City of Poway
LOCAL APPOINTMENTS LIST
2023
In compliance with the requirements of the Maddy Act, Government Code 54972, the following appointment list is posted on an annual basis by December 31st. The City Clerk's Office submits the following:
BUDGET REVIEW COMMITTEE
Qualifications:
Purpose:
Term:
Expiring terms:
The committee consists of five (5) members who must be Poway residents.
The purpose of the Budget Review Committee shall be to review the annual Operating and Capital Improvement Budget as proposed by the City Manager, and report its findings to the City Council.
Two Years
Name Appointed By Appointed Term Expires
Chris Pikus Dave Grosch 03/01/22 12/31/22
------l -----
Nick Carruthers
1 Caylin Frank I 03/02/21 12/31/22
----
Danielle Vigneault John Mullin I 03/02/21 12/31/22
--
I 03/01/22*
Cindi Maher 1 Steve Vaus *Resigned Effective 12/31/23
11/29/22
I John Couv;tte
-----
Barry Leonard 03/01/22 j 12/31/23
----------------
PARKS AND RECREATION ADVISORY COMMITTEE
Qualifications:
Purpose:
Term:
Expiring terms:
3 of3
The committee consists of five (5) members who must be Poway residents.
The purpose of the Parks and Recreation Advisory Committee shall be to advise the City Council on the parks and recreational needs of the City of Poway.
Two Years
Name Appointed By Appointed Term Expires
· Derrick Benson John Mullin 03/02/2021 12/31/2022
Mike Furlano Dave Grosch 03/02/2021 i 12/31/2022
I
Marc Hennen Barry Leonard 03/02/2021 I 12/31/2022 -1
J. Harry Jones Steve Vaus 03/02/2021 12/31/2022
Kim MacDonald Caylin Frank 03/02/2021 . 12/31/2022
ATTACHMENT A
December 6, 2022, Item #5
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AG EN DA REPORT City of Poway
December 6, 2022
Honorable Mayor and Members of the City Council
Jeff Chumbley, Fire Chief r
Brian Mitchell, Deputy Fire Chief
(858) 668-4462 or [email protected]
CITY COUNCIL
Memorandum of Understanding between St. Michael's Catholic Church and the City of Poway to use the Church as an Emergency Shelter in the Event of an Evacuation
During a disaster, it is the City's responsibility to ensure that adequate shelters are available for residents who have been evacuated from their homes. The City and St. Michael's Church (Church) have expressed mutual interest in establishing a Memorandum of Understanding (MOU) for the Church to be utilized as an emergency shelter in the event of an evacuation. The MOU formalizes the City's and Church's responsibilities to provide evacuees with shelter in the event of an emergency.
Recommended Action:
It is recommended the City Council approve the Memora.ndum of Understanding with St. Michael's Catholic Church and the City's use of their facility in the event of an emergency and authorize the City Manager to execute the agreement.
Discussion:
During a disaster, it is the City's responsibility to ensure that adequate shelters are available for those who have been evacuated from their homes. St. Michael's Catholic Church desires to assist those evacuees and is suitable for providing shelter to those displaced from their homes for an undetermined amount of time. Following the Witch Creek Fire in 2007, it was determined additional shelter sites were needed in the City. An MOU between the City and the Church was previously in place between 2009 -2019 but expired. The City and Church now desire to enter into a new MOU to continue to serve the public in an emergency.
The American Red Cross (ARC) has the primary role of providing care and shelter for evacuees in San Diego County. In a significant event with multiple shelters open, the ARC may not be able to. fill all requests being made to provide shelter to evacuees. More than 100 City staff and community 1 of7
December 6, 2022, Item #5
volunteers have received training in shelter operations which gives the City the ability to supplement the ARC and provide 24-hour care for evacuees. The City has a 40-foot shipping container on the Church property which holds shelter supplies for up to 300 evacuees.
The MOU will commence upon its date of execution and remain in effect for five (5) years. Provided either party does not give the other party at least 180 days advance written notice for non-renewal, this Agreement shall automatically renew for one (1) additional five (5) year period on the same terms and conditions.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA) Fiscal Impact:
There is uncertainty surrounding the actual use of the emergency shelter following a disaster.
Consequently, the fiscal impact of such events cannot be precisely determined. There is sufficient funding in the Extreme Events Reserve Fund to be able to provide residents with shelter in the event of an emergency. Potentially up to 75% and/or 6.25% of the total cost could be recovered by FEMA and/or the California Disaster Assistance Act (CDAA) respectively. Reimbursements from other sources is also a potential as disaster funding changes over time.
Public Notification:
None.
Attachments:
A. Memorandum of Understanding
Reviewed/Approved By:
Wendyaserman
Assistant City Manager
2 of 7
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Ch~
City Manager
December 6, 2022, Item #5
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("Agreement" or "Understanding") is effective December I, 2022, between St.
Michael's Catholic Church ("Provider") and the City of Poway ("City") (each a "Party" and collectively the "Parties").
RECITALS
A. The City has the responsibility in a disaster to ensure that adequate shelters are available for those residents who have been evacuated from their homes.
B. The Provider has a facility (15546 Pomerado Road, Poway, California 92064) suitable for sheltering those displaced from their homes for an undetermined amount of time. The Parties recognize the mutual benefit ofutilizing the identified Facility as a disaster shelter. The City has the authority to contract for the use of property on a 24/7 basis within a mutually agreed upon time frame when such property is needed in connection with a disaster causing evacuations of the residents of San Diego County.
C. The Provider desires to assist those disaster evacuees consistent with its obligations and duties owed to its members, users, clients and neighbors.
NOW, THEREFORE, for valuable consideration as hereinafter set forth, the parties hereto agree as follows:
I Term. The term ("Term") of this Agreement is for a period of approximately five (5) years, commencing December I, 2022 and ending November 30, 2027 unless sooner terminated under the terms of Agreement. Provided either party does not give the other Party at least 180 days advance written notice of its election for non-renewal, this Agreement shall automatically renew for one (I) additional five (5) year period on the same terms and conditions. 2 Conditions. The parties agree that the following conditions shall apply to this Agreement:
2.1 For purposes of this Agreement, a disaster shall be defined as the actual or threatened existence of conditions of disaster or extreme peril to the safety of persons and property within the City caused by conditions such as air pollution, fire, flood, storm, epidemic, riot or earthquake, or other conditions, including conditions resulting from war or imminent threat of war, but other than conditions resulting from a labor controversy, which conditions are or are likely to be beyond the control of the services, personnel, equipment, and facilities of the City, requiring the combined forces ofother political subdivisions to combat. The City Manager, serving as the EOC Director, has the authority to declare a public emergency and request the services of St. Michael's Church.
2 2. This Agreement is subject to and conditioned upon the written consent to the terms of this Agreement by the Provider's subtenant and other contractual users of the Facility.
2.3 Physical Surveys and Inspection Reports. The Provider will make the Facility available for security and physical assessments by law enforcement and City employees at reasonable times and during normal business hours at the inception of this Agreement and annually thereafter, even if the Facility is not used as an emergency site.
A written joint physical survey and inspection report of the Facility shall be prepared and signed by each Party each time the City requests use of the Facility, reflecting the existing conditions at that time. A similar written joint physical survey and inspection report of the Facility shall be prepared and signed by each Party at the completion of each use, reflecting the existing conditions.
2.4 Closure. The City shall provide the Provider with 24 hours' notice prior to discontinuing use of the Facility as a shelter.
3 of7 ATTACHMENT A
December 6, 2022, Item #5
3 Obligations of Parties. During the Term of this Agreement, the Parties shall furnish the following to each other:
3.1 Obligations of Provider. The Provider shall furnish the following:
3.1.1 Immediate contact information of the person responsible for opening and closing buildings and rooms, repairs, maintenance, and servicing of the Facility and all related equipment fixtures.
Primary Person or Agency Contact:
Name: Father Melchisedech Monreal
Address: 15546 Pomerado Road
Office Phone: 858-487-4755
Cell Phone: 858-487-4755
Home Phone: 858-487-4755
E-Mail: [email protected]
Alternate Contact:
Name: Mark Williams
Address: 15546 Pomerado Road
Office Phone: 858-487-4755
Pager/Cell Phone: 619-218-6983
858Home Phone: 858-675-4505
E-mail: [email protected]
3.1.2 To the extent the conditions of the disaster permit use of indoor environmental control, the Provider will use its best efforts to maintain 59-86 degrees Fahrenheit;
3.1.3 Parking as it currently exists for emergency vehicles and truck maneuvering space will be made available for emergency use;
3.1.4 Space as it currently exists for the erection of multiple pop-up tents and large storage units will be available for emergency use;
3.1.5 Indoor space as it currently exists to set up a rest area for personnel during the period of the disaster;
3.1.6 Use of the multipurpose room;
3.1. 7 Use of office space concurrent with parish staff use;
3.1.8 Access and use of copy machines;
3.1.9 Restrooms;
3.1.10 Available multiple accesses (entrance and exit);
3.1.11 Sprinkler system and fire extinguishers as currently installed will be available during the period of the disaster;
3.1.12 The Provider will use its reasonable efforts to maintain a rodent/insect free environment;
3.1.13 Refrigeration/Cooler;
3.1.14 Electrical power and outlets as currently exist in the Facility;
3.1.15 Accessible Wi-Fi;
3.1.16 The tables and chairs available at the time of the disaster will be available for use;
3.1.17 Hand trucks as currently available will be available for disaster use; 4of7
December 6, 2022, Item #5
3.2 Obligations of the City. The City shall provide the following:
4 3.2.1 Immediate contact information of the person(s) responsible for activating the Provider as a shelter.
Primary Contact: Jeff Chumbley
Address: 13325 Civic Center Drive, Poway CA
Office Phone (858) 668-4461
Cell Phone (760) 445-7945
E-Mail: [email protected]
Alternate Contact: Brian Mitchell
Address: 13325 Civic Center Drive, Poway CA 92064
Office Phone (858) 668-4462
Cell Phone (760) 805-6458
E-Mail: [email protected]
3.2.2 The City shall provide and place on the Provider's property, a metal storage container up to forty ( 40) feet in length containing sufficient cots, bedding and toiletries to accommodate 300 evacuees for at least seventy-two (72) hours in the event of a disaster.
3.2.3 The City shall provide any and all permits or administrative actions necessary to ensure that the storage container is in compliance with pertinent city building codes.
3.2.4 The City shall provide training for personnel associated with the Provider so that they are prepared to open and operate a care and shelter facility in the event of a disaster.
3.2.4 The City shall act as a liaison between the Provider and the American Red Cross and make every reasonable effort to assist the Provider in obtaining reimbursement from the Red Cross for the costs of operation of the Facility or the portion of the Facility (including utilities) used during the emergency period.
Loss, Damage or Destruction.
The City, hereby assumes liability for the loss, damage, or destruction of the Facility and equipment furnished under this Agreement, if such loss, damage or destruction is related to or arises from the City's use of the Facility and equipment, or is otherwise related to or arising from the City's performance of its obligations under this Agreement; provided that no reimbursement will be made for loss, damage or destruction when due to (1) ordinary wear and tear, (2) the fault or negligence of the Provider, the Facility or its agents. 5 Insurance and Indemnity.
5.1 Liability Insurance. Each Party acknowledges that it has in force and effect appropriate insurance or is permissibly self-insured.
5.2 Indemnity. The City shall indemnify and hold the Provider harmless from and against any and all claims arising from the City's use of the Facility and the equipment furnished, and from the conduct of the City's business or from any activity, work or thing done, permitted or suffered by the City in or about the Facility or elsewhere on the Property. The City shall further indemnify and hold the Provider harmless from and against any and all claims arising from any breach or default in the performance of any obligation of the City or arising from any negligence of the City or any of the City's agents, contractors or employees and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If any action or proceeding is brought against the Provider by reason of any such claim, the City, upon notice from the Provider, shall defend the same at the City's expense by counsel satisfactory to the Provider. The City, as a material part of the consideration to the Provider, hereby assumes all risk of damage to property or injury to persons in, upon or about the Facility arising from City's use of the Facility and equipment furnished, and the City hereby waives all claims in respect thereof against the Provider. 5 of7
December 6, 2022, Item #5
5.3 Exemption of the Provider from Liability. The City hereby agrees that the Provider shall not be liable for injury to the City or for any damage to the goods, wares, or other property of the City, its employees, invitees, customers or any other person in or about the Facility. Further, the Provider shall not be liable for any injury to the City, its employees, agents or contractors whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain or from breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the damage or injury results from conditions arising upon the premises or upon other portions of the property or from other sources or places and regardless of whether the cause of damage or injury or the means of repairing the same is inaccessible to the City. 6 Holding Over. In the event the City remains in possession of the Facility after the expiration of this Agreement, the Agreement shall be automatically extended on a day-to-day basis and otherwise on the terms and conditions herein specified.
7 Termination. This Agreement may be terminated as follows:
7.1 Termination by the City. The City may terminate this Agreement for convenience at any time, by providing written notice to the Provider stating the effective date of such termination.
7.2 Termination by the Provider: The Provider may terminate this Agreement with I 80 days' written notice to the City.
7.3 By mutual agreement of the Parties hereto;
7.4 Upon expiration of the Term.
8 Assignment. The City shall not assign its interest in this Agreement without first obtaining the Provider's prior written consent.
9 Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other or any other person shall be in writing and either served personally, sent by prepaid certified mail, first class, or facsimile and shall be addressed to the other party at the address set forth under its name on the signature page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing accordance with this Section. Notice shall be deemed effective upon receipt if personally delivered or seventy-two (72) hours from the date of mailing if mailed as provided in this Section. 10 Attorney's Fees. If either party brings an action to enforce the terms of this Agreement or declare rights hereunder, the prevailing party in such action, on trial or appeal, shall be entitled to reasonable attorney's fees to be paid by the losing party as fixed by the court.
11 Security Measures. The City hereby acknowledges that the Provider hereunder does not include the cost of guard service or other security measures and that the Provider shall have no obligation whatsoever to provide the same. The City assumes all responsibility for the protection of the City, its agents and invitees from acts of third parties. 12 Miscellaneous.
12.1 Amendments. This Agreement contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Agreement may be modified only in a writing signed by all parties hereto.
12.2 Severability. The invalidity of any provision of this Agreement as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof and it shall remain in full force and effect.
12.3 Governing Law. This Agreement shall be governed by the laws of the State of California. 6 of7
December 6, 2022, Item #5
12.4 Authority. Each individual executing this Agreement on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of that entity.
12.5 Incorporation of Recitals. Recital provisions set forth above are an integral pa1t of this Agreement and are by this reference incorporated herein as though set forth in foll.
12.6 Dispute Resolution
12.6.1 If any party hereto becomes involved in litigation ansmg out of this Agreement, or the performance of it, the court or tribunal in such litigation, or in a separate suit, may award reasonable costs and expenses of litigation, including expert witness fees and attomey's fees, to the prevailing party.
12.6.2 Mediation of Disputes. Except as otherwise provided herein, the parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before res01ting to court action.
Mediation fees, if any, shall be divided equally among the parties involved. u: for any dispute or claim to which this paragraph applies, any pa1ty commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney's fees, even if they would otherwise be available to that party in any such action.
12.6.3 Exclusions from Mediation. The following matters are excluded fi-om mediation: (I) a judicial or non-judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage or installment land sale contract as defined in California Civil Code §2985; (2) an unlawful detainer action; (3) the filing or enforcement of a mechanic's lien; and (4) any matter that is within the jurisdiction of a probate, small claims or bankruptcy court. The filing of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation provisions. /
~ ./
By:~~
F /M. I 1h. (.de h-M 5, ag(er r, e c1 1se c . ·onrea
Address: 15546 Pomerado Road
Poway, California, CA 92064
Tel.#: 5t5rr 4 ~=f -L\:·yb-/;
Email: y(\e..\vv1 ioJS"ftf'CVVC"-Y .:Of'Cj
V ~-.J
7of7
By _____________ _
Chris Hazeltine, City Manager
13325 Civic Center Drive
Poway, California 92065
Tel.# (858) 668-4501
Emai I: [email protected]
APPROVED AS TO FORM:
Alan Fenstermacher, City Attorney
December 6, 2022, Item #6
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PQ RT City of Poway
December 6, 2022
Honorable Mayor and Members of the City Council
Chris Hazeltine, City Manager
Wendy Kaserman, Assistant City Manager WV
(858) 668-4502 or [email protected]
Approval of Lease Agreement with Sportsplex, USA, Inc.
CITY COUNCIL
The City of Poway originally entered into a lease agreement for the operation and management of the South Poway Sports Park in 1992. The City approved reassignment of the lease to Sportsplex, USA, Inc. (Sportsplex) in 1997. Through the years, the lease has been amended eight times. Most recently the agreement was amended in 2020 when Sportsplex changed ownership. The existing lease is set to expire in December 2023. Staff is proposing the City Council approve a new lease with new terms and conditions.
Recommended Action:
It is recommended the City Council approve the lease agreement with Sportsplex, USA, Inc. and authorize the City Manager to execute the agreement.
Discussion:
The City of Poway constructed the South Poway Sports Park in 1992. It was designed with the intention of being operated by a private concessionaire. The City originally entered into an agreement with Sportsparks/Kajima for the operation and management of the facility when it opened. The lease was reassigned to Sportsplex in 1997. In May 2020, ownership of Sportplex transferred from the previous owner, William Berghoff, to the facility's long-time manager, Sean Melvin. In recognition of the ownership change, the City entered into an eighth amendment to the original agreement. That amendment is set to expire in December 2023.
Through the years the terms of the lease have changed multiple times in terms of responsibilities, rent and credits for various projects. The current terms include monthly rent of $4,000/month, 8% of gross receipts (less monthly rent paid), and an annual $13,200 rent credit for landscaping. Sportsplex is responsible for indoor water costs, while the City is responsible for outdoor water costs.
In developing the new lease agreement, staff had two primary objectives. The first was to simplify the 1 of23
December 6, 2022, Item #6
terms of the agreement and make the financial terms less complicated. The second goal was to work with Mr. Melvin to draft a lease agreement where Sportsplex bears all responsibility for operating and capital costs with no City financial support either through credits or payments of certain expenses (i.e. outdoor water). From Mr. Melvin's perspective, since the current lease is due to expire in December 2023, he was looking to secure a long-term lease before investing in any significant improvements and/or capital replacement projects. To achieve the goals of both parties, the City negotiated new lease terms that make business sense to both the City, as well as Mr. Melvin. Going forward, as Sportsplex revenues increase beyond specific thresholds, the amount of rent paid to the City will increase as well.
The primary terms of the new lease are set forth below.
Term
If approved by the City Council on December 6, 2022, the lease will take effect on January 1, 2023. The initial term is five years, with the option to extend by two additional five year terms.
Rent
Monthly rent will increase from $4,000/month to $5,000/month for the initial five year term. Monthly rent will increase from $5,000/month to $6,000/month upon execution of the first five year extension and rent will in increase again from $6,000/month to $7,000/month upon execution of the second five year extension.
Percentage rent will not apply until the Sportsplex's annual gross revenues reach $2,000,000 or greater. If gross revenues, which are defined in the agreement, reach $2,000,000, Sportsplex will pay the City 2% of gross revenues in addition to the monthly rent. If gross revenues reach $2,500,000, Sportsplex will pay the City 2.5% of gross revenues in addition to monthly rent, and if gross revenues reach $3,000,000, Sportsplex will pay the City 3% of gross revenues in addition to monthly rent.
Operating Costs and Capital Costs
For the term of the lease, Sportsplex will be responsible for all operating costs including indoor and outdoor water costs, tree and landscaping maintenance and capital replacement costs. The agreement describes the City's expectations in terms of tree maintenance and provides a three year timeframe for all trees to be on the prescribed maintenance schedule.
Updated Language/Requirements
In addition to the terms described above, the lease has also been updated to include language about compliance with regional storm water requirements, prevailing wage requirements as applicable, and current insurance/indemnification requirements. Mr. Melvin has expressed some interest in converting portions of the facility to solar power, language has been added to ensure that if this is pursued, the City bears no long-term financial obligations to any agreements Mr. Melvin may enter into related to solar power. Additionally, the agreement makes clear that, as would be the case with any private development project, the appropriate permits are required for maintenance and/or capital work at the facility.
Miscellaneous
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December 6, 2022, Item #6
Other provisions, added to memorialize current practices, include the City's free use of the facility for the second Fourth of July fire works display that was added in 2020, as well as the Sportsplex receiving free advertising in the City's quarterly recreation guide.
City Staff and Mr. Melvin have reviewed and discussed in detail the proposed terms of the agreement.
Since entering into the current agreement with Mr. Melvin in 2020, he has proven to be a good business partner with the City. As proposed in the draft agreement for City Council's consideration, the City looks forward to continuing to work with Mr. Melvin for the foreseeable future.
Environmental Review:
The approval of the Amended and Restated Lease Agreement for an existing facility is not a "project'' under CEQA because approval of this lease will not result in a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. (Pub. Res.
Code§ 21065.) Even if the approval of this lease was a project, it would be exempt from CEQA review under the Class 1 (Existing Facilities) exemption.
Fiscal Impact:
During the initial five-year term of the lease, annual lease revenue will be $60,000 per year. This will increase to $72,000 per year with the first five year extension and increase again to $84,000 per year with the second five year extension of the lease. With the new lease, the City will no longer be paying Sportsplex the $13,200 annual rent credit for landscaping and will no longer be paying for outdoor water which is currently approximately $38,000 annually and increasing in future years based on approved water rates. Depending upon how the Sportsplex's gross revenues increase over time, the City will see more lease revenue as Sportsplex's revenues increase and Sportsplex begins paying percentage rent in addition to monthly rent.
Additionally, with Sportsplex assuming all responsibility for tree and landscape maintenance, as well as capital replacement costs, there are additional future savings to the City's General Fund.
Public Notification:
A copy of the agenda report has been provided to Sean Melvin, owner of Sports pl ex, USA, Inc.
Attachments:
A. Lease Agreement
Reviewed/Approved By:
Wend aserman
Assistant City Manager
3 of23
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chr#/Jp
City Manager
December 6, 2022, Item #6
LEASE AGREEMENT
This AMENDED AND RESTATED LEASE AGREEMENT (the "Lease") is entered into as of January 1, 2023, (the "Effective Date"), by and between the City of Poway, a Municipal Corporation (the "City"), and SPORTSPLEX, USA, Inc., a California Corporation (the "Tenant"), collectively referred to herein as the "Parties."
RECITALS
WHEREAS, the City owns the property located at 12349 Mclvers Court, Poway, California, as shown in the attached Exhibit A (the "Premises"), and is commonly known as the Sportsplex USA Poway (the "Sportsplex");
WHEREAS, Sportsplex contains three tournament quality, professionally maintained softball fields, four slow-pitch batting cages and two indoor soccer arenas with advanced synthetic turf; WHEREAS, in November 1992, the City entered into the original Lease Agreement (the "Original Agreement") with Sportsparks/Kajima for the operation of the Sportsplex; WHEREAS, the Original Agreement has been amended eight (8) times, with the most recent amendment occurring in June of 2020, and will expire on December 31, 2023; WHEREAS, the Parties seek to terminate the current agreement early and enter into this entirely new, restated Lease to define the roles and responsibilities of the City and the Tenant, including the obligation for the payment of all expenses; WHEREAS, as of the effective date of this Lease, the Original Agreement, as amended, shall have no further force and effect;
WHEREAS, for good and adequate consideration, the Parties desire to enter into the Lease to allow continued operation of the Sportsplex by the Tenant.
NOW, THEREFORE, the City and Tenant hereby agree as follows:
1. Lease Term. The City hereby leases to Tenant the Premises, and Tenant hereby leases the same from the City, for a term commencing on January 1, 2023 (the "Commencement Date") and ending on January 1, 2028 (the "Lease Term"). Tenant shall have the right to renew this Lease for two additional periods of five (5) years by delivering to City written notice of Tenant's intent to renew not less than three (3) months prior to the expiration of the Lease Term, or of the first extension period.
Any such renewal shall be on the same terms and conditions as this Lease.
2. Type of Use. The Premises are being leased to Tenant for the operation and maintenance of the Sportsplex, in substantial accordance with this Agreement, or such other commercial recreation and sports activities and related support functions as may be approved by City, in advance, in its sole discretion. The Sportsplex and related facilities shall be operated on a nondiscriminatory basis for 4 of 23 ATTACHMENT A
December 6, 2022, Item #6
general public use and in compliance with all applicable federal, state, and-local laws and regulations.
Tenant shall not permit overnight camping or sleeping on the Premises.
Tenant shall not use the Premises for any other purpose without in each instance obtaining City's prior written consent.
In the event the City agrees to permit the facilities to be used for other commercial recreation and sports activities and related support functions, Tenant understands the City may request a modification of the terms of this Lease, including without limitation, modified provisions regarding the payment of rent. This requirement does not apply to the City's use of the Sportsplex as described in Section 15 below.
3. Lease Area. The premises ("Premises") are improved with three regulation softball fields, a concession building, two indoor soccer fields, batting cages, group picnic area, concrete amphitheater seating, parking lots, lighting facilities, landscaping, irrigation system, a ticket booth, and a maintenance building. Excluded from the scope of this Lease is the vacant land known as the "Upper Pad", located at the corner of Crosthwaite Circle and Stowe Drive, as delineated on Exhibit A. The Upper Pad is City-owned land and cannot be altered or used for any purpose by the Tenant without prior written permission from the City.
4. As is Condition. The Tenant has leased the Sportsplex since June 9, 2020 and is familiar with the condition of the Premises. The Premises are leased in an as-is physical condition only. By continuing to take possession of the Premises, Tenant acknowledges the Premises are in good and Tenantable condition for the purposes intended and does-not hold the City responsible for any repairs or improvements, including but not limited to: physical infrastructure, landscaping, and irrigation systems. The parties agree that at the time of execution of the agreement, the irrigation system is accepted in as-is condition. Should there be a point in the future when comprehensive repairs to the system are required or desired by both parties, equitable cost sharing will be discussed at that time and the terms will be managed through an addendum to the Lease.
5. Holdover. Tenant will have no right or privilege whatsoever to use or occupy the Lease Area in any manner or for any purpose after this Lease expires or terminates. In the event that Tenant continues to use or occupy the Lease Area after this Lease expires or terminates, this Lease will automatically convert to a month-to-month Lease on the same terms and conditions (the "Holdover Term"), except that (1) the Minimum Monthly Lease Fee will be automatically increased to one hundred fifty percent (150%) over the Minimum Monthly rent and the Annual Percentage Rent payable in the immediately previous year (the "Holdover Fee"), and will continue to increase by five percent annually {5%) in accordance with Section 6{b) (Annual Percentage Rent). provided, however, City shall have the right to terminate the holdover tenancy at will.
6. Relocation Assistance. Tenant hereby acknowledges and agrees that Tenant shall not incur any right, interest, or claim in or to any benefits or assistance arising under Government Code Section 7260, et seq. or any other federal, state or local law, rule, or regulation relating to or arising from Tenant's relocation from the Premises or the termination of this Lease. To the extent Tenant is eligible for such benefits Tenant hereby voluntarily and expressly waives each and every right, title or interest in and to such benefits.
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7. Quitclaim of Tenant's Interest. On termination of this Lease for any reason, Tenant shall deliver to City a quitclaim deed in recordable form quitclaiming all its rights in and to the premises.
Tenant or its successor in interest shall deliver the same within five (5) days after receiving written demand therefor. City may record such deed only on the expiration or earlier termination of this Lease.
If Tenant fails or refuses to deliver the required deed, the City may prepare and record a notice reciting Tenant's failure to execute this lease provision and the notice will be conclusive evidence of the termination of this Lease and all Tenant's rights to the premises.
8. Rent.
a. Minimum Monthly Rent -Tenant shall pay City monthly, within ten (10) days of month-end, without deduction, offset, prior notice or demand, a Minimum Monthly Rent of the Sportsplex. The Minimum Monthly Rent shall be $5,000. The minimum monthly rent will increase by $1,000 per month, when each future extension provided for in this Lease is executed. b. Annual Percentage Rent. In addition to the Minimum Monthly Rent, when total gross receipts reach the thresholds described below, the Tenant shall pay the City an Annual Percentage Rent, in addition to the Minimum Monthly Rent. If Annual Percentage Rent is applicable, it shall be due and payable by March 1 of each year for the prior calendar year.
1. Total Annual Gross Receipts $2,000,000 or greater, Annual Percentage Rent shall be 2% of total annual gross receipts.
2. Total Annual Gross Receipts $2,500,000 or greater, Annual Percentage Rent shall be 2.5% of total annual gross receipts.
3. Total Annual Gross Receipts $3,000,000 or greater, Annual Percentage Rent shall be 3% of total annual gross receipts.
c. Additional Rent. Taxes, property and liability insurance premiums, and all utilities paid by the Tenant pursuant to the provisions of this Lease shall constitute Additional Rent and upon the failure of Tenant to pay any of such amounts, City shall have the same rights and remedies as otherwise provided in this Lease for the failure to pay rent.
d. Net Rent. As set forth in Section 12 of this Lease, it is the intention of the parties that the rent payments herein specified shall be net to City in each year during the term of this Lease, that all costs, expenses, and obligations of every kind relating to the Premises (except as may be otherwise specifically provided in this Lease), which may arise or become due during the term of this Lease, shall be paid by Tenant, and Lessee shall indemnify, defend and hold City harmless against such costs, expenses and obligations
e. Late Payment. Tenant shall pay City a late payment charge equal to five percent (5%) of the Rent for any Rent not paid within thirty {30) days after receipt of notice from City to Tenant. Any amounts not paid within the previously mentioned thirty {30) day period shall bear interest until paid at the lesser of the rate of two percent {2%) per month or the highest rate permitted by law. 6 of23
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f. Termination. If this Lease is terminated at a time other than on the last day of the term, Rent shall be prorated as of the date of termination and, in the event of termination for any reason other than nonpayment of Rent, the balance of all prepaid Rent shall be refunded to Tenant within sixty (60) days of the date of termination and the removal of the Tenant's property from the Premises.
9. Accounting of Gross Receipts. At such time Tenant submits to City the Annual Percentage Rent, such payment shall be accompanied by a monthly financial statement showing the Gross Receipts derived from all operations at the Premises during the preceding month, together with a detailed itemization of the goods and services provided, and all costs and expenses incurred as well as all deductions-or exclusions there from (as shown in Section 10 below). Tenant shall also provide to City within thirty (30) days after the-end of each calendar year a financial statement showing the Gross Receipts derived from all operations at the Premises for the preceding calendar year, together with a detailed itemization of the goods and services provided, and all costs and expenses incurred as well as all deductions or exclusions therefrom.
If Tenant shall fail to prepare and deliver any such written statement and itemization within the required time, and such failure shall continue after thirty (30) days' notice thereof by City to Tenant, then City may cause, but shall not be obligated to cause, an audit to, be made of all books, records, and accounts of the operations at the Premises for such delinquent accounting period and may prepare the statement or statements which Tenant shall have failed to prepare and deliver.
Tenant shall pay on demand all expenses of such audit and the preparation of any such statements and all sums as may be shown by such audit to be due as rent together with interest on the past due amounts at the rate of ten percent per year.
10. Maintenance and Inspection of Adequate Business Records. Tenant shall maintain at the premises or at its office at 12349 Mclvers Court, Poway, California 92064, full, complete, and accurate books, records, and accounts of, all daily Gross Receipts and other records used in calculating the Gross Receipts. Tenant shall keep all such records for three (3) years.
Tenant shall also maintain detailed records on the utilization of the facilities, schedules of teams, contact information for teams, and other pertinent information on the operation and management of the facility. Tenant shall submit hard copies or electronic copies of these records to the City upon the City's request for the documents.
City and its agents shall have the right at reasonable times upon request to examine and inspect all of the books and records of Tenant pertaining to Tenant's operations at the Premises, for the purpose of investigating and verifying the accuracy of statement of Gross Receipts. In addition, City may once in any calendar year cause an audit of the operation of the Tenant to be made by an independent certified accountant mutually agreed to by City and Tenant and if the statement of gross receipts previously made to the City shall be found inaccurate, then and in that event, there shall be an adjustment and one party shall the other on demand such sums as may be necessary to settle in full the accurate amount of said rent payments that should have been paid for the period or periods covered by such inaccurate statement or statements, together with interest on past due amounts at the rate of two (2) percent over the Federal Reserve Bank of San Francisco prime rate: In the event City and Lessee are unable to agree upon an independent certified accountant within thirty (30) days of City's election to cause an audit, the parties agree that any accountant selected from the "Big 4" accounting firms shall be acceptable to both. If said audit shall disclose an inaccuracy in favor of City, 7 of23
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of greater than a five percent {5%) error with respect to the amount of Gross Receipts reported by Tenant for the period of said report, then Tenant shall immediately pay to City the cost of such audit; otherwise, the cost of such audit shall be paid by City. If such audit shall disclose any willful inaccuracy with respect to Gross Receipts reported by Tenant, Tenant shall pay triple the amount due as a result of the audit.
11. following:
Gross Receipts Exclusions. Cost that are excluded from to the Gross Receipts include the a. The amount of all sales tax receipts required to be accounted for by the Tenant and paid to any government or governmental agency, but not the amount of any excise tax (except a consumer excise tax) or other governmental obligation in the nature of a tax on the privilege of doing business; b. The amount of any sales initially included in Sportsplex Gross Revenues that are subsequently subject to refund or credit;
c. The amount of any revenues received by any licensee, contractor or concessionaire (unless such licensee, contractor or concessionaire is an Affiliate) operating in or from the Sportsplex that are not paid or required to be paid to the Operator, provided that such revenues are not derived from the sale of food or beverages;
d. Revenues received by any outside catering company that is not an Affiliate allowed to cater a group, business or other special event at the Sports Park or otherwise on the Property shall not be included in Sports Park Gross Revenues, except any revenues paid to the Operator for the right to bring in an outside caterer to handle food or beverage sales or any commissions or other type of fees paid to the Operator from revenues received by the outside caterer. As an illustration, if Company X contracts with the Operator to cater food service for its group business event, the gross revenues received by the Operator for catering such event shall be included in Sports Park Gross Revenues. If Company X uses its own catering company to cater its group business event, only the fees or commissions paid to the Operator by Company X (or its caterer) for the right to bring in an outside caterer shall be included in Sports Park Gross Revenues. e. Traditional or customary waiter/waitress gratuities paid or given by customers to non- Management Staff employees of the Tenant;
f. Proceeds of insurance other than business interruption insurance applicable to the Sportsplex, if any, which shall be used and applied pursuant to Section 22
12. Net Lease. It is the intent of the parties that the rent provided herein shall be absolutely net to the City and that Tenant shall pay all costs, taxes, assessments, charges, and expenses of every kind and nature imposed on or against the Premises which may arise or become due during the Lease Term, and which, except for execution hereof, would or could have been payable by the City. Tenant recognizes and acknowledges that this Lease may create a "possessory interest" in the Premises as defined in California Revenue and Taxation Code section 107, and that Tenant's property interest may be subject to property taxation levied on the Tenant's property interest. Tenant further acknowledges, and agrees, that this subdivision (a) meets the requirements set forth in Revenue and Taxation Code section 107.G(a).
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13. Surrender. Upon the termination of this Lease all buildings, structures, improvements, and trade fixtures permanently affixed to the Premises together with all records and computer records provided to the City shall become the property of City. Tenant covenants to peaceably yield up and surrender the Premises to City, including all such improvements and trade fixtures in good order, repair and condition, reasonable wear and tear, and damage by casualty excepted. At the option of City, Tenant shall further surrender to City all personal property and equipment necessary to operate the facilities; City shall pay to Tenant within sixty {60) days of such surrender the Fair Market value or Fair Rental value of such personal property, subject to set-off against rent arrearage.
14. Community Services Guide Advertising. During the Lease Term, the Tenant shall be permitted to advertise, at no cost to the Tenant, in each issue of the City of Poway Community Services Guide, produced electronically on a quarterly basis. The ad shall be a half page. The ad will appear in the facilities section of the guide and shall be general advertising in nature, not specific class numbers with days and times. The City shall have authority to modify the ad content at its' sole discretion. The artwork shall be delivered in PDF format and is due according to the current year production calendar. An email reminder will be sent approximately two weeks before the ad is due.
15. City Use of the Facility. The Tenant agrees to allow the City the free use of the facility to stage one of the annual Fourth of July fireworks shows. The City shall be granted access to perform the following activities:
a. City Fire Inspectors can have access to the Premises one month, one week, and one day prior to the show.
b. City can have access to perform any landscape maintenance starting 4 weeks prior to the show and up until the show.
c. Fireworks company can have access to the site on July 3rd for early set up starting at noon. d. Facility will be completely closed for Firework show on July 4th• e. Parking lot will be closed on July 4th, unless an agreement is made between the Sportsplex and City of Poway.
f. The City will have the next business day following the 4th of July to perform any necessary clean-up.
g. If the annual fireworks show is cancelled in a particular year or discontinued at some point during the Lease Term, the City shall notify the Tenant as soon as it is aware of the cancellation or discontinuance.
16. Hazardous Materials. Tenant shall not use, handle, store, or dispose of any hazardous, toxic, or radioactive matter including, without limitation, those materials identified in Chapter 11, Division 4.5 ofTitle 22 of the California Code of Regulations ("Title 22"), as amended from time to time (collectively, "Hazardous Materials").
Tenant shall be solely responsible for, shall pay for, defend (with an attorney approved by the City, such approval not to be unreasonably withheld, conditioned or delayed), indemnify and hold the City, its officials, officers, employees and agents, harmless against and from all claims, judgments, liabilities, losses, liens, costs and expenses, arising out of or involving any Hazardous Materials brought onto the Premises by or for Tenant or by any of Tenant's employees, agents, contractors, visitors or invitees during the term of this Lease. Tenant's obligations hereunder shall exclude pre-existing conditions and shall include, but not be limited to, the investigation, removal, clean-up and/or restoration work as required by applicable law or ordered by any regulatory agency, including but not limited to the San 9 of23
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Diego Regional Water Quality Control Board, the California Department ofToxic Substances Control, or the United States Environmental Protection Agency.
17. Stormwater Compliance. In accordance with the California Regional Water Quality Control Board San Diego Region Order Number R9-2017-0077, (hereinafter referred to collectively as "Trash Amendment"), the City of Poway's Stormwater Management and Discharge Control Ordinance, Poway Municipal Code, Chapter 13 and 16 (the "Stormwater Ordinance") and/or other ordinances or regulations of City which regulate urban runoff, Tenant shall manage storm water runoff and trash generation from the PREMISES with the installation of Storm Water Trash Facilities which are identified as "Best Management Practices" or "BMPs". Installation of BMPs shall be completed within the Lease Term.
The manner and standards by which the BMPs must be repaired and maintained in order to retain their effectiveness are as set forth in the Operation and Maintenance Plan (hereinafter "O&M PLAN") and shall be provided to the CITY at time of installation.
Maintenance of Storm Water Trash Facilities. Tenant agrees, for itself and its successors in interest, to all or any portion of the PREMISES, to comply in all respects with the requirements of the Stormwater Ordinance with regards to the maintenance of BMPs, and in particular agrees to perform, at its sole cost, expense and liability, the following "MAINTENANCE ACTIVITIES": all inspections, cleaning, repairs, servicing, maintenance and other actions specified in the O&M PLAN, with respect to all of the BMPs listed above, at the times and in the manner specified in the O&M PLAN. Tenant shall keep records of this maintenance and provide copies of such records and annual certification of maintenance as requested by City. Tenant shall initiate, perform and complete all MAINTENANCE ACTIVITIES at the required time, without request or demand from City or any other agency. Tenant further agrees that "MAINTENANCE ACTIVITIES" shall include replacement or modification of the BM Ps in the event of failure. Replacement shall be with an identical type, size and model of BMP, except that:
a. The City Engineer may authorize substitution of an alternative BMP if he or she determines that it will be as effective as the failed BMP; and
b. If the failure of the BMP, in the judgment of the City Engineer, indicates that the BMP in use is inappropriate or inadequate to the circumstances, the BMP must be modified or replaced with a more effective BMP to prevent future failure in the same or similar circumstances. ltis agreed that City shall have the right, but not the obligation, to elect to perform any or all of the MAINTENANCE ACTIVITIES if, in the City's sole judgment, Tenant has failed to perform the same. Such maintenance by the CITY shall be conducted in accordance with the nuisance abatement procedures set forth in Poway Municipal Code Chapter 8.72. In the case of maintenance performed by the City, it may be performed by City forces, or a contractor hired by the City, at the City's sole election. It is recognized and understood that the City makes no representation that it intends to or will perform any of the MAINTENANCE ACTIVITIES, and any election by City to perform any of the MAINTENANCE ACTIVITIES shall in no way relieve Tenant of its continuing maintenance obligations under this agreement. If City elects to perform any of the MAINTENANCE ACTIVITIES, it is understood that City shall be deemed to be acting as the agent of the Tenant and said work shall be without warranty or representation by City as to safety or effectiveness, shall be deemed to be accepted by Tenant "as is", and shall be covered by Tenant's indemnity provisions below.
If City performs any of the MAINTENANCE ACTIVITIES, after City has demanded that Tenant perform the same and Tenant has failed to do so within a reasonable time stated in the City's demand, then Tenant shall 10 of 23
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pay all of City's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee.
Tenant's obligation to pay City's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation.
If Tenant fails to pay City's costs for performing MAINTENANCE ACTIVITIES, City may assess a lien on the property or properties of the responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter 8.72.
City shall have the right, at any time and without prior notice to Tenant, to enter upon any part of said area as may be necessary or convenient for such purposes. Tenant shall at all times maintain the PREMISES so as to make City's access clear and unobstructed.
City shall not be liable for, and Tenant and its successors in interest shall defend and indemnify City and the employees and agents of City(collectively "CITY PARTIES"), against any and all claims, demands, liability, judgments, awards, fines, mechanic's liens or other liens, labor disputes, losses, damages, expenses, charges or costs of any kind or character, including attorneys' fees and court costs (hereinafter collectively referred to as "CLAIMS"), related to this Agreement (specifically including but not limited to Tenant's alleged noncompliance with the Trash Amendment or the Stormwater Ordinance), and arising either directly or indirectly from any act, error, omission or negligence of Tenant, Tenant's successors, or their contractors, licensees, agents, servants or employees, including, without limitation, claims caused by the concurrent negligent act, error or omission, whether active or passive, of CITY PARTIES. Tenant shall have no obligation, however, to defend or indemnify CITY PARTIES from a claim if it is determined by a court of competent jurisdiction that such claim was caused by the sole negligence or willful misconduct of CITY PARTIES. Nothing in this Agreement, City's approval of any development application, building permit, or plans and specifications, or inspection of the work is intended to acknowledge responsibility for any such matter, and CITY PARTIES shall have absolutely no responsibility or liability therefore unless otherwise provided by applicable law.
18. Sublease and Assignment. Tenant shall not sublease all or any part of the Premises, or assign this Lease in whole or in part without the City's written consent.
19. Operational Standards. Prior to the execution of this Lease, and annually thereafter and sixty (60) days prior to the commencement of each Lease Year, Tenant shall submit to City a "Facility Operation Plan." Said plan shall contain a description of planned events, including league play and tournaments, as well as hours of operation. The Facility Operation Plan shall include a description of the proposed marketing and advertising program.
Tenant shall operate the Sportsplex in a competent and professional manner equal to or exceeding that specified in the Facility Operation Plan. City shall have the right at reasonable times to inspect the premises. Should City find Operational Standards have fallen below a minimum acceptable level in any area, Lessor shall notify Tenant in writing of the specified subject areas requiring correction. Tenant shall than have a period not exceeding thirty (30) days to correct said deficiency.
20. Alterations and Improvements.
a. Maintenance and Repairs. During and upon termination of the Lease Term, Tenant shall make all necessary repairs and maintenance to the Premises, in so that the Premises is returned to the City in the manner of which it was leased, at Tenant's own expense. Tenant shall also make any and all repairs relating to the Tenant's specific use of the Premises at Tenant's expense.
Tenant shall maintain all portions of the Premises that are visible to the public in good condition, 11 of 23
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including the fencing, parking lot, lighting, sidewalks, physical structures, ground maintenance, the irrigation system, and landscaping. Tenant shall maintain the trees and landscaping as described below.
Trees
All trees in defined area of responsibility shall have a maximum of a three-year trim cycle. Tenant has three years from the effective date of the Lease to bring all trees on to the three-year trim cycle. Progress reports toward getting all trees on the three-year trim cycle shall be provided to the City on a biannual basis with the first report due six months after execution of the Lease. During trim cycle, a licensed arborist shall assess the trees and give a report on health condition and any recommendations. Also in this report, the following shall be listed: Tree species, Tree Height, Tree Diameter Breast Height (DBH), Tree health condition, note of what was done at the trim cycle (treatment, trim/prune), note when last grid was done, estimated value.
Any dead, dying, poorly structured, diseased, or imminent public danger trees shall be addressed immediately.
Volunteer trees that have a< 3 inch DBH shall be removed during weekly routine maintenance.
Vegetation (landscaping)
Landscape maintenance shall occur once ·a week and will include: Weeding, removal of leaves and dropped branches, hedge bushes and other plants, removal of volunteer trees that are< 3 inch DBH, check irrigation operation, repair irrigation, add or spread mulch, prune low hanging tree branches.
Irrigation System
The parties agree that at the time of execution of the agreement, the irrigation system is accepted in as-is condition. Should there be a point in the future when comprehensive repairs to the system are required or desired by both parties, equitable cost sharing will be discussed at that time and the terms will be managed through an addendum to the agreement.
b. Tenant shall exercise due diligence to ensure any airborne dirt/gravel/dust/pollutants is mitigated for surrounding private properties. Stormwater runoff from the Premises shall remain in compliance with all Federal, State and local regulations/laws. Graffiti on the Premises shall be removed by Tenant within seventy-two (72) hours. In no event shall this Lease be interpreted to require the City to expend funds for the purpose of conducting repairs or maintenance of the Premises. Tenant acknowledges and agrees that Tenant is familiar with the condition of the Premises and is aware of the adequacy and fitness of the Premises for Tenant's intended use thereof for the operation of the Business. THE CITY EXPRESSLY DISCLAIMS ANY WARRANTY OF
HABITABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY COVENANT OF QUIET
ENJOYMENT WITH RESPECT TO THE PREMISES AND/OR TENANT'S USE THEREOF PURSUANT TO THIS LEASE. In the event of a force majeure causing significant damage to the Premises, Tenant may elect to make all necessary repairs and continue occupying the Premises or shall be entitled to terminate this Lease.
c. Alterations and Improvements. Tenant, at Tenant's expense, shall have the right, following the City's consent and issuance of appropriate building or other required City permit and inspection as necessary, which the City has no obligation to issue, to make improvements to all or any part of the Premises from time to time as Tenant may deem desirable, provided the same are made in 12 of 23
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a workmanlike manner, utilizing good quality materials, and in compliance with all applicable federal, state, and local statutes, rules, and regulations. Tenant shall have the right to place and install personal property, trade fixtures, equipment and other temporary installations in and upon the Premises, and fasten the same to the Premises. All personal property, equipment, machinery, trade fixtures and temporary installations, whether acquired by Tenant at the commencement of the Lease term or placed or installed on the Premises by Tenant thereafter, shall remain Tenant's property free and clear of any claim by the City. Tenant shall have the right to remove the same at any time during the term of this Lease; provided that Tenant shall be responsible for the repair of any damage caused by such removal.
d. Capital Equipment Repair and Replacement. Tenant shall be solely responsible for all capital equipment repair and replacement on the premises for the duration of the lease including but not limited to HVAC, plumbing, roofing, lighting, and scoreboards. Tenant shall be responsible for applying for all appropriate permits associated with capital equipment repair and replacement.
e. No City Obligations. In connection with any maintenance, repairs, alterations or improvements to the Premises, Tenant shall not place any obligations on the Premises that would obligate the City to make any payment or take any other action, at any time. In particular, if Tenant replaces any lighting with solar lighting or otherwise installs solar facilities on the Premises, Tenant shall not obligate the Premises or City to make any payments or take any action, including any long term financing that would extend beyond the term of this Lease. Instead, all obligations shall be personal to the Tenant, and shall not run with the land, and Tenant agrees it has no authority to enter into such agreement.
f. Prevailing Wage. Tenant shall be solely responsible, expressly or impliedly and legally and financially, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, and labor laws and standards, and City makes no representation, either legally and/or financially, as to the applicability or non-applicability of any federal, state and local laws to any of the Tenant's work on the Premises. Tenant expressly, knowingly and voluntarily acknowledges and agrees that City has not previously represented to Tenant or to any representative, agent or affiliate of Tenant, or any contractor(s) or any subcontractor(s), in writing or otherwise, in a call for bids or otherwise, that any anticipated work on the Premises under this Section 19 is (or is not) a "public work," as defined in Section 1720 of the Labor Code or under the Davis-Bacon Act, 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1 (collectively, "Davis-Bacon"). Tenant knowingly and voluntarily agrees that Tenant shall have the obligation to provide any and all disclosures or identifications as and to the extent required by Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation. Tenant shall indemnify, protect, pay for, defend and hold harmless City, with legal counsel reasonably acceptable to City from and against any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including reasonable attorney's fees, court and litigation costs, and fees of expert witnesses) which results or arises in any way from any of the following: (i) the noncompliance by Tenant or its contractor with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages and hire apprentices); (ii) the implementation of Section 1781 of the Labor Code and/or of Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation; and/or (iii) failure by Tenant to provide any required disclosure or identification as required by Labor Code Section 1781 and/or by Davis-Bacon, as the same may be 13 of 23
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amended from time to time, or any other similar law or regulation. It is agreed by the Parties that, in connection with any work on hit Premises, including, without limitation, any and all public works (as defined by applicable law or regulation), Tenant shall bear all risks of payment or non-payment of prevailing wages under applicable federal, state and local law or regulation and/or the implementation of Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, and/or any other similar law or regulation. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Project.
21. Liens. Tenant agrees that it will pay or cause to be paid all costs for work done by it or caused to be done by it on the Premises of a character which will or may result in liens on the City's reversionary estate therein, and Tenant shall keep the Premises free and clear of all mechanics' liens and other liens on account of work done for Tenant or persons claiming under it. If any such lien shall at any time be filed against the Premises, Tenant shall either cause the same to be discharged within thirty {30) days after the recording thereof, or if Tenant, in Tenant's discretion and in good faith, determines that such lien should be contested, shall furnish such security as may be reasonably required by the City. If Tenant shall fail to furnish such security, then, in addition to any other right or remedy of the City resulting from Tenant's said default, the City may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by giving security or in such other manner as is, or may be, prescribed by law. Tenant shall repay to the City, as "Additional Rent," on demand, all sums disbursed or deposited by the City pursuant to the provisions of this Paragraph 7, including all costs, expenses and attorneys' fees incurred by the City in connection therewith. Nothing contained herein shall imply any consent or agreement on the part of the City to assume any liability under any mechanics' lien or other lien law.
Should any claims of lien be filed against the Premises or any action affecting the title to the Premises be commenced, the party receiving notice of such lien or action shall forthwith use its commercially reasonable efforts to give the other party written notice thereof within five (5) days after receipt. The City or its representative(s) shall have the right to post and keep posted upon the Premises notices of nonresponsibility or such other notices that the City may deem to be proper for the protection of the City's interest in the Premises. Tenant shall, before the commencement of any work that might result in any such lien, give to the City written notice of its intention to do so in sufficient time to enable the posting of such notices
22. Insurance. Tenant shall obtain, at its own cost and expense, and maintain in full force and effect, the following types and amounts of insurance during the term of this agreement:
a. Property Insurance Coverage. Tenant shall possess property insurance, including fire and extended coverage insurance, covering Tenant's personal property, including removable trade fixtures, located in the Property, on a replacement cost basis. Tenant must also have business interruption expense or similar coverage as part of their property insurance policy or under a separate form sufficient to cover rental payments in the event of business interruption.
b. General Liability Insurance. Tenant shall possess a policy or policies of comprehensive general liability insurance with respect to the Premises with coverage of not less than Three Million Dollars ($3,000,000), with a minimum aggregate amount of Four Million Dollars ($4,000,000) combined single limit coverage of bodily injury, property damage or combination thereof.
An excess, or umbrella policy is also acceptable to provide the aggregate amount of coverage. 14 of 23
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c. Workers' Compensation Insurance. Tenant shall possess workers' compensation insurance as required by law. Tenant shall also provide employer's liability coverage in the minimum amount of One Million Dollars ($1,000,000) per act or disease and must also provide a waiver of subrogation in favor of City.
d. Automobile Liability. Tenant shall possess automobile insurance to include owned, hired, and non-owned vehicles with a minimum coverage amount of One Million Dollars ($1,000,000), combined single limit.
e. Professional Liability/Errors & Omissions. Tenant shall possess Professional Liability/Errors and Omissions insurance with a minimum coverage amount of One Million Dollars ($1,000,000), per claim.
f. Liquor Liability. Tenant shall possess liquor liability insurance to extend coverage to drunk driving accidents, assault and battery claims, accusations of sexual assault, and any other claims associated, with a minimum coverage amount of One Million Dollars ($1,000,000). g. Additional Insurance Requirements. All liability insurance shall include, but not be limited to, personal injury, cross liability, and severability of interest clauses, products/completed operations, broad form property damage, independent contractors, and owned, nonowned and hired vehicles. All insurance policies shall be an admitted surety, or an insurance company listed by the State Insurance Commissioner, and shall have a rating in the latest AM Best Rating Guide of a minimum of "A-" and a minimum of Class VI.
23. Endorsements. Endorsements shall be obtained so that each policy contains the following three provisions:
a. Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
(b) Notice. "Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage. "The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
24. Insurance Certificates. Tenant shall provide City certificates of insurance and their endorsements showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
25. Indemnification. Tenant shall defend, indemnify and hold the City, its elected and appointed officers, employees and agents, harmless from all liability whatsoever on account of any damage, injury or liability of any kind or for any injury to or death of persons or damage to property of Tenant or any other person occurring during the term of this Lease arising from any of the following: (i) 15 of 23
December 6, 2022, Item #6
the use, occupancy or enjoyment of the Premises, or Tenant's operations thereon, by Tenant or Tenant's customers, employees, contractors, subcontractors, invitees, permittees, and assignees, or (ii) Tenant's negligence or intentional misconduct, including any breach of this Lease beyond any applicable notice and cure period, or (iii) liens, claims and demands related to Tenant's use of the Premises. Except to the extent arising due to City's negligence or intentional misconduct, Tenant shall in all cases accept any tender of the defense of any action or proceeding arising out of the foregoing in which City is named or made party and shall defend the City as provided herein with counsel reasonably selected by Tenant. Tenant shall not be liable for such damage or injury to the extent and in the proportion that the same is ultimately determined to be attributable to the negligence or misconduct of the City or its officers, employees, agents or representatives, or the City's failure to perform its obligations pursuant to this Lease. Tenant's obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by City. This indemnity provision shall apply to all claims that accrued, or injuries that occurred, prior to Tenant vacating the Premises, regardless of when such claims or injuries were discovered, and shall survive the termination of this Lease
26. Exemption of City from Liability. Lessee agrees that City shall not be liable for injury to Lessee's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of Lessee, Lessee's employees, invitees, customers or any person in or about the Premises, nor shall City be liable for personal injury to Lessee's employees, agents or contractors, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain or from the breakage, leakage, obstruction or other defects of pipes; sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or from any other cause relating to the physical condition or location of the Premises, or utility. services provided thereto.
27. Assumption of Risk. Except for injuries to persons caused by the willful misconduct of City, and not covered by insurance maintained, or required by this Lease to be maintained, by Tenant:
(a) Tenant hereby assumes the risk ofany and all injury and damage to the personnel (including death) and property of Tenant, including its employees, contractors, subcontractors, invitees,guestsorcustomers in or about the Premises; and (b) the Parties hereby agree that the City is not to be liable for any injury or damage which may be sustained by the person, goods or property of Tenant or its employees, contractors, subcontractors, invitees, guests or customers in or about the Premises, whether said damage or injury results from conditions arising within the Premises or from other sources.
28. Licenses, Permits, Etc. Tenant represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to operate the Sportsplex professionally. Tenant represents and warrants to City that Tenant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Tenant to practice its profession.
29. Utilities. To the extent applicable, Tenant shall pay any and all charges for water, sewer, gas, electricity, telephone, and/or any other services and utilities used by Tenant on the Premises during the term of this Lease unless otherwise expressly agreed to in writing by the City. Tenant shall indemnify and hold the City harmless from and against any liability or damages resulting from, arising out of, or connected with, the provision of, or failure to provide or pay any charges assessed against the Premises for such utility services; provided, however that Tenant shall not indemnify the City for damages resulting from the loss of any utility service which results from the City's conduct or the 16 of 23
December 6, 2022, Item #6
conduct ofany contractors, engineers or third parties acting on behalf of the City that are in the City's control.
30. Inspection. The City shall have the right to enter upon the Premises at all reasonable hours to inspect the same upon twenty-four {24) hours' notice to the Tenant, provided the City shall not thereby unreasonably interfere with Tenant's business on the Premises.
31. Damage and Destruction. In addition to other rights herein, if the Premises or any part thereof or any appurtenance thereto is so damaged by fire, casualty or structural defects that the same cannot be used for Tenant's purposes, or if the Premises cannot be used for Tenant's purposes for any other reason, then Tenant shall have the right within ninety (90) days following such damage to elect to terminate this Lease as of the date of such damage by providing written notice to the City. In the event of minor damage to any part of the Premises, and if such damage does not render the Premises unusable for Tenant's purposes and subject to Paragraph 6{a) above, Tenant shall promptly repair such damage at Tenant's sole cost and expense. In making the repairs called for in this paragraph, Tenant shall not be liable for any delays resulting from strikes, governmental restrictions, inability to obtain necessary materials or labor or other matters which are beyond the reasonable control of Tenant.
32. Quiet Possession. The City covenants and warrants that upon performance by Tenant of its obligations hereunder, the City will keep and maintain Tenant in exclusive, quiet, peaceable, undisturbed and uninterrupted possession of the Premises during the term of this Lease; provided that the City shall have no obligation to expend funds to repair or maintain the Premises to maintain compliance with applicable laws or to maintain the Leased Premises in the condition required for Tenant's intended use and quiet enjoyment thereof.
33. Consent. The City shall not unreasonably withhold or delay its consent with respect to any matter for which the City's consent is required or desirable under this Lease.
34. Material Breach. In addition to any other remedies available at law or in equity, any party not in default hereunder may immediately terminate this Lease upon the breach of a material obligation under this Lease by the other party that is not cured within thirty {30) days after written notice of the breach, by providing written notice of intent to terminate to all other parties hereto.
35. Compliance with Law. Tenant shall comply with all federal, state, and local laws, orders, ordinances and other public requirements now or hereafter pertaining to Tenant's operation of the Business and its use of the Premises. The City shall comply with all federal, state, and local laws, orders, ordinances and other public requirements now or hereafter affecting the Premises.
36. Mutual Representations. Each party hereby represents and warrants (i) he or she is an individual or it is a duly organized entity, validly existing and in good standing under the laws of California or Delaware; (ii) that the party has the legal right and authority to enter into and perform its obligations under this Lease; and (iii) that the execution and performance of this Lease will not conflict with or violate any provision of any law having applicability to such party; and (iv) that this Lease, when executed and delivered, will cqnstitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. 17 of 23
December 6, 2022, Item #6
37. Waiver. No express waiver shall affect any default other than the default specified in the express waiver and any waiver shall be effective only for the time and to the extent therein stated. No waiver by the City or Tenant shall be construed asa waiver of a subsequent breach of the same covenant, term or condition.
38. Contracts and Agreements. All equipment leases, financing agreements, contracts and agreements relating to the Sportsplex (including without limitation contracts for utility services, telecommunications services, Maintenance and Repair services, pest control, supplies, landscaping services, and agreements for tournaments, banquets and other group functions), entered into during the Term shall be entered into by the Operator as the contracting party. The Operator shall not have any authority to enter into any equipment lease, financing agreement, contract or agreement that extends beyond the Term of this Agreement, that is not terminable on thirty (30) days or less notice, if the Operator defaults under the terms of this Agreement, or that is secured by all or any part of the Sportsplex Improvements or the Premises. All contracts entered into by the Operator regarding the Sportsplex shall automatically expire on the Expiration Date.
39. Mortgage of Lease. Lessee shall have the right to encumber at any time, and from time to time, the estate created by this Lease (but not the City's interest in the Premises) by a mortgage, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits from the Premises, to secure repayment of any loan, and associated obligations, to Lessee from an institutional tender (which, for purposes oft is Section, shall mean any national or state bank, foreign bank agency licensed in California, federal or state savings and loan association, trust company, insurance company, educational institution, pension, retirement, or welfare fund, charitable foundation, real estate investment trust or any person, firm, or corporation engaged in the commercial finance business or other mortgagee approved in writing by City, such approval not to be unreasona_bly withheld). Upon request, City shall cooperate with Lessee and promptly execute appropriate documents that may reasonably be required by a prospective Lender certifying as to whether the leasehold mortgage complies with the restrictions in this paragraph. In the event Lender requires any modification to he provisions of this Section in order to secure its loan, City agrees not to unreasonably withhold consent to such modifications-so long as the interests of City are not materially adversely affected thereby.
40. Estoppel Certificates. Lessee and City, shall, without charge, at any time and from time to time within fifteen (15) days of the receipt of the request ·of the other party or -the Lender· certified by instrument duly executed and acknowledged:
a. That the Lease is unmodified and in full force and effect, or if there have been any modifications, that the same are in full force and effect as modified and stating the modifications;
b. Whether or not there are then any known existing setoffs or defenses against the enforcement of any of the agreements, terms, covenants or conditions hereof or any modifications hereof upon the part of any party to be performed or complied with and if so, specifying the same;
c. The dates, if any, to which ne Annual Minimum Rent, Percentage Rent, and Additional Rent\have been paid, and a statement as to the advance payment of such sums, if any; d. The date of expiration of the current Term of this Lease; e. The amount of the Annual Minimum Rent, Percentage Rent, and Additional Rent, then payable under this Lease; and,
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December 6, 2022, Item #6
f. Such other matters as may reasonably be requested.
Any such certificates may be relied upon by any party to whom the certificate is directed. However, no party shall be estopped thereafter from asserting that a default has occurred, if at the time of making of the aforesaid certificate, such party had no knowledge of such default.
41. Notices. All notices required by or relating to this Lease shall be in writing and shall be sent via certified mail, postage prepaid, return receipt requested, to each and every party to this Lease and addressed as follows:
To Tenant:
To City:
19 of23
Sportsplex USA Poway
Attn: Sean Melvin
12349 Mclvers Court
Poway, CA 92064
City of Poway City
Attn: City Manager
13325 Civic Center Drive
Poway, CA 92064
December 6, 2022, Item #6
42. Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
43. Headings. The article, section, and paragraph titles and headings contained in this Lease are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Lease or any of its provisions.
44. herein.
Definitions. Capitalized terms not defined herein shall have the meaning set forth
45. Pronouns. Whenever used in this Lease, the singular shall include the plural, the plural shall include the singular, and the neuter gender shall include the male and female as well as a trust, firm, company, or corporation, all as the context and meaning of this Lease may require.
46. Amendments. This Lease may be altered, amended, or repealed only by a writing signed by all of the parties.
47. Additional Documents and Acts. The parties to this Lease shall promptly execute and deliver any and all additional documents, instruments, notices, and other assurances, and shall do any and all other acts and things, reasonably necessary in connection with the performance of their respective obligations under this Lease and to carry out the intent of the parties.
48. Severability. If any provision of this Lease is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Lease shall remain in effect.
49. Successors and Assigns. This Lease shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, and permitted successors and assigns.
50. Governing Law and Forum Selection. This Lease shall be governed by, and construed in accordance with, the laws of the State of California. The federal or state courts located in San Diego County, California shall have exclusive jurisdiction to hear any dispute arising under this Lease.
Each party hereto consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth herein. Tenant hereby waives any right to remove any action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394.
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December 6, 2022, Item #6
51. Attorneys' Fees. In the event City or Tenant commences any action or proceeding, including but not limited to the filing of a lawsuit, in connection with the interpretation or enforcement of this Lease, then as between City and Tenant, the prevailing party shall be entitled to recover from the losing party all of its litigation costs and expenses, including court costs, arbitration costs, expert witness fees, and reasonable attorneys' fees incurred in connection with such action, and all fees, costs and expenses incurred on any appeal or in collection of any judgment.
52. Entire Agreement. This Lease constitutes the whole and entire agreement of the parties with respect to the subject matter of this Lease, and it shall not be modified or amended in any respect except by a written instrument executed by all the parties. This Lease replaces and supersedes all prior written and oral agreements by and among the parties or any of them. (Remainder of Page Intentionally Left Blank)
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December 6, 2022, Item #6
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written.
CITY:
City of Poway,
a municipal corporation
By: -----------
Chris Hazeltine, City Manager
ATTEST:
By: -----------
Carrie Gallagher, CMC City Clerk
APPROVED AS TO FORM:
By:-----------
Alan Fenstermacher, City Attorney
22 of23
TENANT:
Sportsplex USA, Inc.
a California corporation
By:
Name: Sean Melvin, Chief Executive Officer
December 6, 2022, Item #6
Exhibit A -Lease Area
Poway USA Sportsplex
APNs 317-281-17, 317-281-18 & 317-280-46 _.,.,,..._-=ac-,=- 23 of23
December 6, 2022, Item #7
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
December 6, 2022
Honorable Mayor and Members of the City Council
Aaron Beanan, Director of Finance ·~Q,,. k'M ~
Brad Rosen, Assistant Director of Finance Operations -~ (858) 668-4452 or [email protected]
CITY COUNCIL
Replacement of Citywide Network Switches and Appropriation of Funds Network switches are needed at City facilities to provide network connectivity for servers, computers, Wi-Fi hardware, cameras and other network attached equipment. Annually, as part of the City's Capital Replacement program, the City collects "rent" to be used to cover the eventual replacement costs of City equipment. The Capital Replacement Budget includes partial funding for the purchase and replacement of 26 network switches. Additional funding is needed for these replacements due to increased hardware manufacturer costs and additional requirements as detailed in the discussion section below. It is recommended the City Council approve the purchase of 26 network switches and associated components. The total estimated purchase price for the hardware including sales tax is $342,937.
Recommended Action:
It is recommended the City Council appropriate funds in the amount of $165,809 for the purchase of 26 network switches and associated components for a total estimated cost of $342,937 and authorize the City Manager to execute any necessary documents.
Discussion:
The City maintains network switches at all City facilities to provide connectivity to servers, computers, Wi-fi hardware, video cameras and other network attached devices. The City's Information Technology maintenance program plans for these devices to be replaced every five to seven years or when they reach end-of-support as determined by the manufacturer. Except for three switches, which are five years old, the remaining switches are currently seven years old. Additionally, the City has been notified by vendors that equipment delivery may be delayed due to global constraints on technology hardware. As such, existing devices will be even older at time of actual replacement.
The City issued a Request for Quotes (RFQ) on November 1, 2022 and received four quotes from Hewlett Packard Enterprise (HPE) authorized resellers. One quote was determined to be non responsive as it did not properly quote all the products required. Per the RFQ, the City has the ability 1 of 6
December 6, 2022, Item #7
to modify the counts of any of the line items included in the RFQ. The table below details the total price quotes from vendors for the items staff is recommending for purchase.
Vendor Quote*
Nth Generation Computing, Inc. $342,937.00
Newport West Technology Group $479,735.33
Technologent $524,034.00
Insight Public Sector Non-Responsive
*Includes reduced quantities from RFQ & sales tax
The Capital Replacement Budget includes partial funding for the purchase and replacement of 26 network switches. Rent collected on the existing devices was based on the technology available at that time and additional funding is needed due to the following factors:
a) Significant cost increases in the past few years for technology hardware. b) Enhanced hardware redundancy including dual power supplies for each switch. c) Future proofing hardware that can handle higher network speeds and connected device power requirements.
d) Most current models that will meet the five-to-seven-year expected lifespan and are not approaching end-of-life in the near future.
After evaluation of the quotes, staff is recommending the purchase of the replacement network switches from Nth Generation, Inc. who provided the lowest price for this hardware.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
The total cost to replace 26 network switches and associated components is $342,937. A total of $149,676 (115010-61212) has been collected in replacement rental charges and $27,452 (113010-61212) was included in the Fiscal Year 2023 budget for this purchase. When sufficient funds have not been set aside through the City's asset management replacement charges, the requesting department funds the difference. This helps ensure the financial sustainability of the replacement funds. Future year's asset management replacement charges will be based on-the new purchase price and will begin being collected next year.
As such, staff requests Council authorization to appropriate $165,809 to 113010-61212 (Information Technology -Computer Hardware) for the purchase or 26 network switches and associated components. Funding is available in the General Fund Unassigned Fund Balance (Fund 100) for the purchase of the network switches.
Public Notification:
None.
2 of6
December 6, 2022, Item #7
Attachments:
A. Nth Generation, Inc. Quote to the City of Poway
Reviewed/Approved By:
Wend aserman
Assistant City Manager
3 of6
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chri~
City Manager
December 6, 2022, Item #7
~h
,.,,.G-ENERATION
Account Manager: Carol Herr
Inside Sales: Mifi Stewart
Email Orders To: [email protected]
Project #: 112754 Quote Date: 11/17/2022
Quoted to:
Brad Rosen
City of Poway
13325 Civic Center Drive
P.O. Box 789
Poway, CA 92064-0789
Ship to:
Email: [email protected]
Email: [email protected]
Phone: 858-451-2383x172
Quote Expires: 12/17/2022 Quote#: 154329
Aruba Network Switch Solution with 4 years of support
HPE Aruba 24 Port Switches
JL660A 3 Aruba 6300M 24SR5 CL6 PoE 4SFP56 $8,174.00 $24,522.00 y Swch
JL670A:ABA 6 Aruba X372 54VDC 1600W PS U.S. -$1,077.00 $6,462.00 y English localization
$30,984.00
HPE Aruba 40 Port Switches
JL659A 23 Aruba 6300M 48SR5 CL6 PoE 4SFP56 $9,326.00 $214,498.00 y Swch
JL670A:ABA 46 Aruba X372 54VDC 1600W PS U.S. -$1,077.00 $49,542.00 y English localization
$264,040.00
HPE zl2 Module
J9993A 3 HP 8p 1 G/1 0GbE SFP+ v3 zl2 Mod $2,995.00 $8,985.00 y 17055 Camino San Bernardo, San Diego,CA 92127 858-451-2383 nth.com Page 1 of 3 4 of6 ATTACHMENT A
December 6, 2022, Item #7
a#th
.IJITG-ENERATION
Account Manager: Carol Herr
Inside Sales: Mifi Stewart
Email Orders To: [email protected]
Project#: 112754 Quote Date: 11/17/2022
Quoted to:
Brad Rosen
City of Poway
13325 Civic Center Drive
P.O. Box 789
Poway, CA 92064-0789
Ship to:
Email: [email protected]
Email: [email protected]
Phone: 858-451-2383x172
Quote Expires: 12/17/2022 Quote #: 154329
Aruba Network Switch Solution with 4 years of support
I PART# ---~ -----------QTY DESCRIPTION UNIT PRICE -Eif -PRIC~X $8,985.00
HPE DAC Cables & Transceivers
R0M46A 11 Aruba 50G SFP56 to SFP56 0.65m $177.00 $1,947.00 y DAG Cable
R0M47A 1 Aruba 50G SFP56 to SFP56 3m DAG $265.00 $265.00 y Cable
J9150D 25 Aruba 1 0G SFP+ LC SR 300m MMF $482.00 $12,050.00 y XCVR
$14,262.00
17055 Camino San Bernardo, San Diego,CA 92127 858-451-2383 nth.com Page 2 of 3 5 of6
December 6, 2022, Item #7
a#th
,,,.G-ENERATION
Account Manager: Carol Herr Email: [email protected]
Email: [email protected]
Phone: 858-451-2383x172
Inside Sales: Mifi Stewart
Email Orders To: [email protected]
Project#: 112754 Quote Date: 11/17/2022 Quote Expires: 12/17/2022 Quote #: 154329 Quoted to:
Brad Rosen
City of Poway
13325 Civic Center Drive
P.O. Box 789
Poway, CA 92064-0789
Ship to:
Aruba Network Switch Solution with 4 years of support
Quote Subtotal
Tax Rate 7.750%
Est. Shipping *
Payment Terms
$318,271.00
$24,666.00
UNDER REVIEW
TOTAL DUE $342,937.00
* Thank you for allowing Nth Generation to provide you with the above quotation. Charges for Shipping and insurance will be additional. If you require an estimated shipping cost prior to issuing a purchase order, please contact your sales or inside sales rep. This quotation is the sole property of Nth Generation Computing, Inc. and is intended as an offer to sell goods and services to the client named in this quote. This document may not be reproduced, or provided to parties outside this organization, without written consent of Nth Generation Computing, Inc.
Remit to: Same Address
DUNS#: 78-1123211
Federal ID#: 33-0451285
CAGE Code: 0YVL 1
FOB: Destination
Ship Via: Fedex Ground/UPS/ Your designated carrier
Terms: Net 30 (On Approved Credit)
17055 Camino San Bernardo, San Diego,CA 92127 858-451-2383 6 of6
nth.com Page 3 of 3
December 6, 2022, Item #8
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
December 6, 2022
Honorable Mayor and Members of the City Council
Audrey Denham, Director of Community Services 54{)
Roger Morrison, Senior Management Analyst @
(858) 668-4581 or [email protected]
CITY COUNCIL
Approval of Agreement with Fluoresco Services, LLC, for PCPA Marquee Sign Repair
The marquee sign at the Poway Center for the Performing Arts (PCPA) no longer functions. Staff has obtained a quote from the sign's manufacturer to repair it while also coordinating its display with the screen over the box office. Because the cost is slightly more than was budgeted in this year's Capital Improvement Plan budget, an appropriation will be required to complete the repairs.
Recommended Action:
It is recommended the City Council approve the Agreement with Fluoresco Services, LLC, for the repair of the PCPA marquee sign, authorize the City Manager to execute all necessary documents associated with the Agreement, and appropriate funds for the completion of the repair.
Discussion:
The digital marquee sign at the PCPA was constructed in 2007. The marquee and box office digital displays are used to market events at the PCPA and are key components of the strategy to increase public awareness of the theater's diverse programming. Performance titles, dates, times, and images are posted for the Poway Unified School District, Poway OnStage, and community organization events.
Functioning public information displays reassure the public that the facility is open, provide general information, and encourage patrons to seek further information on the website and purchase tickets.
Although the structure of the sign is intact, the display no longer functions.
Staff reached out to the builder of the sign, Fluoresco Services, LLC, to determine what would be needed to bring the sign back to working order. The proposal is to keep most of the original sign but replace the digital screens with two single-faced LED units with improved resolution compared with the original sign.
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December 6, 2022, Item #8
Communication with the sign would use 4G wireless, eliminating the need to install or maintain additional cabling between the PCPA building and the sign. Proprietary display software is included in the installation and would not require ongoing subscription fees. Staff is recommending the same system be used to control the display screen over the box office, which provides ticketing information.
That screen also is in need of updating, and its replacement is included in this project. This project would streamline operations by allowing staff to use one content management system to control both units.
Although repair of the marquee sign was included in this fiscal year's adopted Capital Improvement Plan budget, the total cost estimate is slightly higher than the $60,000 budgeted. An appropriation of $14,057 is necessary to complete the project. Staff is requesting approval to sole-source this project due to the original construction firm's expertise with the sign and its components.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
The cost to complete the PCPA Marquee Sign Repair, including taxes and a 10% contingency, is estimated at $74,057. There is currently $60,000 in this year's Capital Improvement Plan project budget (Fund 1060, Project MN037). Staff is recommending the City Council appropriate $14,057 from the Capital Improvement Fund's Unassigned Fund Balance (1060) to the PCPA Marquee Sign Repair budget (MN037) for the repair. Sufficient funds are available for this request.
Public Notification:
None.
Attachment:
A. Standard Agreement
Reviewed/Approved By:
'},~ ~
We~aserman
Assistant City Manager
2 of 19
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
City Manager
December 6, 2022, Item #8
City of Poway
STANDARD AGREEMENT FOR SERVICES
This Agreement, entered into this 6th day of December, 2022, by and between the CITY OF POWAY (hereinafter referred to as "City") and Fluoresco Services, LLC (hereinafter referred to as "Contractor").
RECITALS
WHEREAS, City desires to obtain the services of a private contractor to perform repair of the Poway Center for the Performing Arts Marquee Sign (Project); WHEREAS, Contractor is a sign contractor and has represented that Contractor possesses the necessary qualifications to provide such services; and WHEREAS, City has authorized the preparation of an agreement to retain the services of Contractor as hereinafter set forth.
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONSULTANT ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Contractor shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
2. Compensation and Reimbursement.
City shall compensate and reimburse Contractor as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
3. Term of Agreement.
The term of this Agreement shall be as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by City. Termination without cause shall be effective only upon 60-day written notice to Contractor. During said 60- day period Contractor shall perform all consulting services in accordance with this Agreement.
This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Contractor in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City. Termination for cause shall be effected by delivery of written notice of termination to Contractor. Such termination shall be effective upon delivery of said notice.
5. Confidential Relationship.
December 6, 2022, Item #8
City may from time to time communicate to Contractor certain information to enable Contractor to effectively perform the services. Contractor shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Contractor shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Contractor, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Contractor without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Contractor by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
Contractor shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this contract without the prior written consent of the City. In its performance hereunder, Contractor shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation.
6. Office Space and Clerical Support.
Contractor shall provide its own office space and clerical support at its sole cost and expense.
7. Covenant Against Contingent Fees.
Contractor declares that it has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the Agreement. For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Contractor upon demand.
9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Contractor shall not act as contractor or perform services of any kind for any person or entity whose interests conflict in any way with those of the City of Poway. Contractor shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Contractor shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Contractor has a financial interest as defined in Government Code Section 87103. Contractor represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City.
December 6, 2022, Item #8
"Contractor" means an individual who, pursuant to a contract with a state or local agency:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract;
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or
(B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
DISCLOSURE DETERMINATION:
C8] 1. Contractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above.
No disclosure required.
D 2. Contractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, Contractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law.
Department Director
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void.
11. Maintenance of Records.
Contractor shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such
December 6, 2022, Item #8
materials available at its office at all reasonable times during the contract period and for three (3) years from the date of final payment under this Agreement, for inspection by City and copies thereof shall be furnished, if requested.
12. Independent Contractor.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of the City of Poway. City shall have the right to control Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Contractor accomplishes such services.
13. Licenses, Permits, Etc.
Contractor represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession.
Contractor represents and warrants to City that Contractor shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Contractor to practice its profession.
14. Contractor's Insurance.
Contractor shall provide insurance as set forth in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
15. Indemnification.
(a) For Claims (as defined herein) other than those alleged to arise from Contractor's negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Contractor or any other person for, and Contractor shall indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Contractor's negligent performance under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-contractors or employees.
(b) For Claims alleged to arise from Contractor's negligent performance of professional services, lndemnitees shall have no liability to Contractor or any other person for, and Contractor shall indemnify and hold harmless lndemnitees from and against, any and all Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Contractor's negligent performance of any professional services under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-contractors or employees, committed in performing any of professional services under this Agreement. For Claims alleged to arise from Contractor's professional services, Contractor's defense obligation to lndemnitees shall include only the reimbursement of reasonable defense costs and attorneys' fees to the extent caused by Contractor's negligence.
December 6, 2022, Item #8
( c) The foregoing obligations of Contractor shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers.
(d) In any and all Claims against City by any employees of the Contractor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor under worker's compensation acts, disability benefit acts or other employee benefit acts. (e) Contractor shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Contractor is carrying and maintaining; however, if Contractor fails to take such action as is necessary to make a claim under any such insurance policy, Contractor shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Contractor under any insurance policy or policies required pursuant to this Agreement. (f) The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section 15. (g) The rights and obligations of the parties described in this Section 15 shall survive the termination of this Agreement.
16. Assumption of Risk.
Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Contractor:
(a) Contractor hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Contractor that occurs in the course of, or in connection with, the performance of Contractor's obligations under this Agreement, including but not limited to Contractor's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Contractor or its employees in connection with Contractor's performance its obligations under this Agreement, including but not limited to Contractor's Scope of Services.
17. Contractor Not an Agent.
Except as City may specify in writing, Contractor shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
18. Personnel.
Contractor shall assign qualified and certified personnel to perform requested services. The City shall have the right to review and disapprove personnel for assignment to Poway projects.
City shall have the unrestricted right to order the removal of any person(s) assigned by Contractor by giving oral or written notice to Contractor to such effect.
December 6, 2022, Item #8
Contractor's personnel shall at all times comply with City's drug and alcohol policies then in effect.
19. Notices.
Notices shall be given as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
20. Governing Law, Forum Selection and Attorneys' Fees.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Each party to this Agreement consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central Division, unless the parties mutually agree to submit their dispute to arbitration. Contractor hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. The prevailing party in any such action or proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the foregoing, in the event that the subject of such an action is compensation claimed by Contractor in the event of termination, Contractor's damages shall be limited to compensation for the 60-day period for which Contractor would have been entitled to receive compensation if terminated without cause, and neither party shall be entitled to recover their litigation expenses.
21. Gender.
Whether referred to in the masculine, feminine, or as "it," "Contractor" shall mean the individual or corporate contractor and any and all employees of contractor providing services hereunder.
22. Counterparts.
This Agreement (and any amendments) may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Documents delivered by telephonic facsimile transmission shall be valid and binding.
23. Entire Agreement.
This Agreement shall constitute the entire understanding between Contractor and City relating to the terms and conditions of the services to be performed by Contractor. No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby.
24. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013.
Contractor hereby certifies that all persons providing services to City by Contractor are not current members of the California Public Employees' Retirement System (Cal PERS) and shall not become members of CalPERS while providing services to City.
December 6, 2022, Item #8
Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B."
Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect.
(Remainder of page intentionally left blank)
December 6, 2022, Item #8
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written.
CITY OF POWAY
By:-----------
Chris Hazeltine, City Manager
Date: ___________ _
ATTEST:
Carrie Gallagher, CMC, City Clerk
APPROVED AS TO FORM:
By: ____________ _
Alan Fenstermacher, City Attorney
CONSULTANT: FLUORESCO
SERVICES, LLC
By:-----------
Name, Title
Signature: _________ _
Date: ___________ _
December 6, 2022, Item #8
A.
"SPECIAL PROVISIONS"
EXHIBIT "A"
Scope of Services.
Contractor agrees to perform contracting services as required by City, which shall consist of the sign repair services further described in the proposals dated June 3, 2022, and October 14, 2022, which are included in this document as Attachment 1, and incorporated by reference, as if its contents were fully set forth herein. Contractor shall provide the necessary qualified personnel to perform the services.
B. Compensation and Reimbursement.
City shall pay Contractor a fee in accordance with the Fee Proposals submitted with the proposals dated June 3, 2022, and October 14, 2022, which are included in this document as Attachment 2. Total fee is not to exceed $67,325. Contractor's fee shall include and Contractor shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
In addition to said consulting fee, Contractor shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Contractor shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates.
Reimbursement for lodging is limited to travel from outside of San Diego County. Contractor shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred.
C. Term of Agreement.
This Agreement shall be effective from the period commencing December 6, 2022, and ending December 5, 2023, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." This Agreement may be extended for up to two additional one year periods upon approval in writing of the City Manager and Contractor. Upon expiration or termination of this Agreement, Contractor shall return to City any and all equipment, documents or materials and all copies made thereof which Contractor received from City or produced for City for the purposes of this Agreement.
D. Contractor's Insurance.
1. Coverages:
Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate.
December 6, 2022, Item #8
(b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit.
(c) Contractor shall obtain and maintain, during the life of the Agreement, a policy of Professional Errors and Omissions Liability Insurance with policy limits of not less than $1,000,000 combined single limits, per claim and annual aggregate. (d) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Contractor shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
To City:
To Contractor:
City of Poway
P.O. Box 789
Poway, CA 92074
Fluoresco Services, LLC
2778 Pomona Blvd
Pomona, CA 91768
December 6, 2022, Item #8
EXHIBIT "B"
Cal Gov Code§ 7522.56
Deering's California Codes are current through all 1016 chapters of the 2018 Regular Session and the November 6, 2018 Ballot Measures.
Deering's California Codes Annotated> GOVERNMENT CODE> Title 1 General> Division 7 Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public Employees' Pension Reform Act of 2013
§ 7522.56. Provisions applicable to person receiving pension benefit from public retirement system; Section supersedes conflicting provisions (a) This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section. (b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section.
(c) A person who retires from a public employer may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration.
( d) Appointments of the person authorized under this section shall not exceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement. (e)
(1) Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12-month period prior to an appointment described in this section, the retired person received any unemployment insurance compensation arising out of prior employment subject to this section with a public employer. A retiree shall certify in writing to the employer upon accepting an offer of employment that he or she is in compliance with this requirement.
December 6, 2022, Item #8
(2) A retired person who accepts an appointment after receiving unemployment insurance compensation as described in this subdivision shall terminate that employment on the last day of the current pay period and shall not be eligible for reappointment subject to this section for a period of 12 months following the last day of employment.
(f) A retired person shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement unless he or she meets one of the following conditions:
(1) The employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting. The appointment may not be placed on a consent calendar. (2)
(A) Except as otherwise provided in this paragraph, for state employees, the state employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed state employment position before 180 days have passed and the appointment has been approved by the Department of Human Resources. The department may establish a process to delegate appointing authority to individual state agencies, but shall audit the process to determine if abuses of the system occur. If necessary, the department may assume an agency's appointing authority for retired workers and may charge the department an appropriate amount for administering that authority. (B) For legislative employees, the Senate Committee on Rules or the Assembly Rules Committee certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar.
(C) For employees of the California State University, the Trustees of the California State University certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar.
(3) The retiree is eligible to participate in the Faculty Early Retirement Program pursuant to a collective bargaining agreement with the California State University that existed prior to January 1, 2013, or has been included in subsequent agreements. ( 4) The retiree is a public safety officer or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter. (g) A retired person who accepted a retirement incentive upon retirement shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement and subdivision (f) shall not apply.
December 6, 2022, Item #8
(h)This section shall not apply to a person who is retired from the State Teachers' Retirement System, and who is subject to Section 24214. 24214. 5 or 26812 of the Education Code.
(i)This section shall not apply to (1) a subordinate judicial officer whose position, upon retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to work in the converted position, and the employer is a trial court, or (2) a retiree of the Judges' Retirement System or the Judges' Retirement System II who is assigned to .serve in a court pursuant to Section 68543.5.
History
Added Stats 2012 ch 296 § 15 (AB 340). effective January 1, 2013. Amended Stats 2013 .ch 528 § 11 (SB 13), effective October 4, 2013 (ch 528 prevails); ch 76 § 75 (AB 383), effective January 1, 2013; Stats 2014 ch 238 § 1 (AB 2476), effective January 1, 2015.
Annotations
Notes
Amendments:
Note-
Amendments:
2013 Amendment:
Substituted (1) "have passed" for "has passed" in the first sentence of subds (f)(l) and (f)(2); (2) "or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter" for "of firefighter" in subd (f)( 4); and (3) "Judges' Retirement System" for "Judges' Retirement System I" in subd (i).
December 6, 2022, Item #8
Submited To: Jeff Beers
Company Name: City of Poway
·LfloRifsCO
SERVICES™
Date: 6.23.2022
By: Lyndsee Veltre
Customer Address: 13325 Civic Center Drive
Customer City, ST: Poway, CA
Job Name: City of Poway Performing Arts Center
Job Address: 15498 Espola Rd
Customer Direct Phone: 858.668.4624
Customer Email: [email protected]
Product General Description:
Two (2) single face 8mm LED units 41" X 63" X 5"
Filler Strips on top, bottom & both sides
Total Product FOB:
Tax will be charged at local Tax rate at time of billing 7.75% FOB:
Field Services
Remove two (2) existing single face LED units & dispose Install two (2) single face 10mm LED units w/ filler strips Total Field Services
Product Total
Field Services Total
irotal
Deposit Required
Balance Due
Notes & Comments:
Job City, ST: Poway, CA
Job Site #: N/ A
Qty: Item Cost
2 $15,700.00
8 $100.00
0 $0.00
0 $0.00
Qty: Item Cost
2 $1,800.00
2 $3,750.00
0 $0.00
0 $0.00
Total
$31,400.00
$800.00
$0.00
$0.00
$32,200.00
$0.00
$32,200.00
Total
$3,600.00
$7,500.00
$0.00
$0.00
$11,100.00
$32,200.00
$11,100.00
43,300.00
$21,650.00
$21,650.00
Customer to provide primary power to all sign locations within 6'. If permits are required munical permit fees & permit procurement fees will be billed at cost
Accepted By: (customer name)
Customer Signature:
Sales Rep Name:
Sales Rep Signature:
Fluoresco Services LLC -An Everbrite Company
2778 Pomona Blvd
Pomona, CA 91768
Date:
Date:
December 6, 2022, Item #8
Submited To: Jeff Beers
Company Name: City of Poway
Customer Address: 13325 Civic Center Drive
Customer City, ST: Poway, CA
Customer Direct Phone: 858.668.4624
Customer Email: [email protected]
Product General Description:
One (1) single face 6mm LED unit 2' X 4'
Total Product FOB:
Tax will be charged at local Tax rate at time of billing 7.75% FOB:
Field Services
Install one (1) single face 6mm LED unit 2' X 4'
Total Field Services
Product Total
Field Services Total
iTQtal
Deposit Required
Balance Due
Notes & Comments:
Date: 10.14.2022
By: Lyndsee Veltre
Job Name: City of Poway Performing Arts Center
Job Address: 15498 Espola Rd
Job City, ST: Poway, CA
Job Site#: N/A
Qty: Item Cost
1 $16,500.00
Qty: Item Cost
1 $3,750.00
Total
$16,500.00
$16,500.00
$0.00
$16,500.00
Total
$3,750.00
$3,750.00
. $16,500.00
$3,750.00
20,250.00
$10,125.00
$10,125.00
Customer to provide primary power to all sign locations within 6'. If permits are required munical permit fees & permit procurement fees will be billed at cost
Accepted By: (customer name]
Customer Signature:
Soles Rep Nome:
Soles Rep Signature:
Fluoresco Services LLC -An Everbrite Company
2778 Pomona Blvd
Pomona, CA 91768
Dote:
Dote:
December 6, 2022, Item #8
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RETAINERS; PROVIDE ALUMINUM FILLER PANELS
PAINTED TO MATCH #SW6122 CAMELBACK
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December 6, 2022, Item #8
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PAGE 2 OF 2
December 6, 2022, Item #9
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
December 6, 2022
Honorable Mayor and Members of the City Council
Carrie Gallagher, City Clerk i.~
(858) 668-4435 or [email protected]
CITY COUNCIL
Second Reading and Adoption of Ordinance 858 entitled "An Ordinance of the City Council of the City of Poway, California, Amending Chapter 2.18 of the Poway Municipal Code (Meetings)"
The introduction and first reading of the above-entitled Ordinance was approved at a Regular City Council Meeting on November 15, 2022. There were no speakers.
The Ordinance is now presented for second reading and adoption by title only.
Vote at first reading:
Recommended Action:
AYES:
NOES:
LEONARD, FRANK, GROSCH, MULLIN, VAUS
NONE
ABSTAINED: NONE
ABSENT: NONE
DISQUALIFIED: NONE
It is recommended the City Council adopt Ordinance No. 858.
Environmental Review:
None.
Fiscal Impact:
None.
Public Notification:
An ordinance summary notice was published in the Poway News Chieftain on Thursday, November 24, 2022. A certified copy of this Ordinance will also be posted in the Office of the City Clerk in accordance with Government Code section 36933.
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December 6, 2022, Item #9
Attachments:
A. Ordinance No. 858
Reviewed/Approved By:
Assistant City Manager
2 of 5
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c~
City Manager
December 6, 2022, Item #9
ORDINANCE NO. 858
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AMENDING CHAPTER 2.18 OF THE
POWAY MUNICIPAL CODE (MEETINGS)
WHEREAS, City staff and the City Attorney's Office have been progressively analyzing the Poway Municipal Code ("PMC") and recommending updates where appropriate; and WHEREAS, revision of the procedures governing City Council meetings and public committee meetings is required in order to provide for the efficient transaction of public business.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:
SECTION 1: The above recitations are true and correct.
SECTION 2: The City Council hereby approves this ordinance and amends certain sections of the PMC as specified below. Removals are indicated with strikethrough and additions are indicated with underline.
SECTION 3: Section 2.18.060(8) of Chapter 2.18 of the PMC is hereby amended as follows:
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B. The business of the Council shall be taken up for consideration and disposition in the following order:
1. Call to order;
2. Roll call;
3. Pledge of Allegiance;
4. Moment of silence;
5. Presentations;
6. Public Comment;
7. Consent Calendar/Waiver of Ordinance Text Reading/Ordinances for Adoption;
8. Ordinances for Introduction;
\
Q, Ordinances for Adoption;
4-0:-9. Public Hearings;
44-:-~ Staff reports;
4&.-11. Council initiated items;
ATTACHMENT A
December 6, 2022, Item #9
4-J.a.R Council Committee reports (AB 1234) and Announcements; 44:-11:_ City Manager items;
4-&.-~ City Attorney items, including any public report of any action taken in closed session;
4&.-1.§.,_ Adjourn me nt.
The regular order of business may be changed or suspended for any purpose at any particular meeting by the Mayor, with the consent of the majority of the Council members present.
SECTION 4: If any provisions of this Ordinance or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 5: This Ordinance shall be codified.
EFFECTIVE DA TE: This Ordinance shall take effect and be in force thirty (30) days after its adoption.
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Council members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933.
INTRODUCED AND FIRST READ at a Regular Meeting of the City Council of the City of Poway, California, held the 15th day of November, 2022, and thereafter.
PASSED AND ADOPTED at a Regular Meeting of said City Council held the 6th day of December, 2022, by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DISQUALIFIED:
4 of 5
December 6, 2022, Item #9
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
5 ofS
December 6, 2022, Item #10
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AG EN DA REPORT City of Poway
December 6, 2022
Honorable Mayor and Members of the City Council
Eric Heidemann, Director of Public Works 4 ~
CITY COUNCIL
Will Wiley, Assistant Director of Public Works for Maintenance Operation" 4:' / (858) 668-4705 or [email protected] 'Y~
Acceptance of City Facilities Painting 2021-22 Project; Bid No. 22-009 with Harbor Coating & Restoration, as Complete
On May 17, 2022, the City Council awarded the contract for the City Facilities Painting Project, Bid No. 22-009, to Harbor Coating & Restoration in the amount of $93,000.00. This action will accept the project as complete.
Recommended Action:
It is recommended the City Council:
(1) Accept the City Facilities Painting 2021-22 Project as complete; (2) Authorize the City Clerk to file and record the Notice of Completion; (3) Authorize the release of the retention in the amount of $4,788.50, if unencumbered, 45-days after the City Council's acceptance;
(4) Release the Argonaut Insurance Company Bond for Material and Labor in the amount of $93,000.00 after the release of retention; and
(5) Retain the Argonaut Insurance Company Bond for Faithful Performance for a period of one (1) year.
Discussion:
On May 17, 2022, the City Council awarded the contract for the City Facilities Painting 2021-22 Project, in the amount of $93,000.00 to Harbor Coating & Restoration. The project originally included the exterior painting of six (6) City buildings and their various surfaces (fascia, doors, trim, gutters/downspouts, etc.) and decorative items (gates, railings, pillars, trellis, etc.) One (1) change order in the amount of $2,770.00 was processed for this project. The change order added the painting of three (3) additional items at Lake Poway to the project, including the Lake Poway entrance sign, landscape shed, and vestibule. The final contract amount is $95,770.00. 1 of 2
December 6, 2022, Item #10
Including the change order, this project consisted of exterior painting for the following City assets:
• Parks and Trails Landscape Shop at Lake Poway
• Community Services Administrative Building at Lake Poway • Lake Poway Concession Stand
• Fire Station 2
• Sheriff Station
• Household Hazardous Waste Building
• Lake Poway Entrance Sign (additional item by change order) • Lake Poway Landscape Shed (additional item by change order) • Lake Poway Vestibule (additional item by change order) Staff finds the project to be complete in accordance with the standards and specifications of the contract.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
Sufficient funds are available in the Capital Facilities Renovation Painting Project Account (MN028) for the release of retention in the amount of $4,788.50.
Public Notification:
None.
Attachments:
None.
Reviewed/Approved By:
Assistant City Manager
2 of 2
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c~
City Manager
December 6, 2022, Item #11
AGENDA REPORT CityofPoway
DATE:
TO:
FROM:
CONTACT:
December 6, 2022
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Services
Jeff Beers, Special Projects Engineer k?
(858) 668-4624 or [email protected] 7::D
CITY COUNCIL
SUBJECT: Acceptance of the FY 2022-23 Street Maintenance Project; Bid No. 22-013, with American Asphalt South, Inc., as Complete
Summary:
On June 21, 2022, the City Council awarded the contract for the FY 2022-23 Street Maintenance project; Bid No. 22-013 to American Asphalt South, Inc., in the amount of $1,310,654.46. This action will accept the project as complete.
Recommended Action:
It is recommended the City Council:
(1) Accept the FY 2022-23 Street Maintenance project as complete; (2) Authorize the City Clerk to file and record the Notice of Completion; (3) Authorize the release of the retention in the amount of $65,799.25, if unencumbered, 45 days after City Council acceptance;
(4) Release the Everest Reinsurance Company Bond for Material and Labor in the amount of $1,310,654.46 after the release of retention; and
(5) Retain the Everest Reinsurance Company Bond for Faithful Performance for a period of one year.
Discussion:
The FY 2022-23 Street Maintenance project is part of the City's Annual Pavement Management Program that placed Type II emulsion aggregate slurry on 98 streets. Streets included with this project are located within Zone 5, which encompasses residential streets along Poway Road and Garden Road and arterial streets including Poway Road from Community Road to Highway 67 and Community Road from Poway Road to Stowe Drive. The project also included raising survey monuments, water valve cans and sewer manhole lids to grade. The work was coordinated in Zone 5 with the FY 2021-2022 Annual Street Overlay and FY 2022-2023 Citywide Striping contracts.
There were two change orders for this project totaling $5,330.51. The change orders included remobilization costs due to delay of obtaining the CalTrans permit to close Poway Grade and a zero out change order to adjust the contract to the exact quantities placed. The final contract amount is $1,315,984.97.
1 of 2
December 6, 2022, Item #11
Environmental Review:
The matter of acceptance of public improvements that have been completed, which were the subject of a prior environmental determination, is not subject to the California Environmental Quality Act.
Fiscal Impact:
Sufficient funds are available in the FY 2022-23 Street Maintenance project account (ST022) for the release of retention.
Public Notification:
None.
Attachments:
None.
Reviewed/Approved By:
Wen -Kaserman
Assistant City Manager
2 of 2
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chlf#/;p
City Manager
December 6, 2022, Item #12
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
December 6, 2022
Honorable Mayor and Members of the City Council
Robert Manis, Director of Development Services ,./AA
David De Vries, City Planner
(858) 668-4604 or [email protected]
CITY COUNCIL
Adoption of an Ordinance of the City of Poway, California, Amending Poway Municipal Code (PMC) Title 15, Adopting by Reference the 2022 California Building Standards Codes with Local Amendments, Adoption of a Resolution Amending and Establishing Permit and Inspection Fees within the Fire Department Section of the Master Fee Schedule, and Determination that the Adoption ofthe Foregoing Amendments by Ordinance and Resolution is Exempt from the California Environmental Quality Act pursuant to CEQA Guidelines Section 15061 (b )(3)
On December 3, 2019, the City Council adopted the 2019 Edition of the California Building Standards Codes. These codes, which are adopted by reference, will be replaced by the 2022 Edition of the California Building Standards Code. The 2022 Edition codes will go into effect on January 1, 2023. The purpose of this Ordinance is to update the Poway Municipal Code (PMC) to the current State mandated code edition and to incorporate local amendments which address the City's specific needs based upon our zoning regulations and unique climate, topography, and geography. This proposed Ordinance includes the State required fire and life safety codes and practices from the California Building Standards Code, which includes the Fire Code, for the City of Poway. Additionally, permit and inspection fees within the Fire Department section of the Master Fee Schedule are being amended and established to align with the current State required fire and life safety codes and practices.
Recommended Action:
It is recommended the City Council take public input, close the public hearing and introduce the Ordinance (Attachment A) for first reading by title only, waiving further reading, schedule the adoption for January 17, 2023, adopt the Resolution (Attachment B) amending and establishing permit and inspection fees within the Fire Department section of the Master Fee Schedule and determine that the adoption of the foregoing amendments by Ordinance and Resolution is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061 (b)(3). 1 of 43
December 6, 2022, Item #12
Discussion:
2022 California Building Standards Code with Local Amendments The California Building Standards Code is published by the California Building Standards Commission every three years to include fire, building, electrical, residential, plumbing, mechanical, energy, and green building standards. Every three years, the City then adopts these codes by reference in Title 15 of the PMC, titled "Building and Construction." The last time the City updated its codes was in 2019, to adopt the 2019 Edition, which also introduced the centralization of the Fire Code and repealed the Wildland-Urban Interface Code.
The California Health and Safety Code Section 17958 requires each jurisdiction in the State adopt the most recent edition of the California Building Standards Code within 180 days of publication. The 2022 California Building Standards Code was published on July 1, 2022. The Statewide effective date established by the . California Building Standards Commission for the 2022 California Building Standards Code is January 1, 2023. If it is not adopted by the jurisdiction, then it has the force of law 180 days after publication. The State codes would remain in effect until a local Ordinance is adopted.
When adopting the California Building Standards Code, a jurisdiction may establish more restrictive standards reasonably necessary based on climatic, geography or topographic conditions.
This year, the California Building Standards Commission published the 2022 California Building Standards Code which is based on the 2021 International Building Code, the 2021 International Residential Code, the 2021 International Existing Buildings Code, the 2021 International Fire Code, the 2021 Uniform Plumbing Code, the 2021 Uniform Mechanical Code, and the 2020 National Electrical Code.
The California Fire Code (CFC) is the State of California's model Fire Code with its administrative authority being derived from the Health and Safety Code. Since its inception, the CFC has become internationally recognized for its role in affirmatively addressing the issues related to fire prevention, fire protection, firefighter safety and public safety. The Office of the State Fire Marshal is responsible for publishing the code text complete with changes reflecting new philosophies, engineering knowledge, and technological applications. Once the State Fire Marshal adopts the CFC, it later becomes effective throughout the State of California for all cities, counties and fire districts. In addition, local adoption is necessary in order to amend the model code to reflect particular challenges unique to that region or to implement revisions necessary to provide fire protection consistent with a community's ability to prevent, respond to, or mitigate fire, building or safety hazards.
The purpose of this Ordinance is to update the PMC to the current State-mandated code editions, which are adopted by reference, with local amendments. The Ordinance (Attachment A) is provided in strike out/ underline format. The City can enforce the State-adopted codes with local amendments as the minimum standards for construction. The 2022 Edition includes the adoption of the following California Building Standards Codes published by the California Building Standards Commission and places them in the following Chapters of the PMC:
2 of 43
California Building Standards Code
2022 California Administrative Code
2022 California Building Code
2022 California Electrical Code
2022 California Residential Code
2022 California Plumbing Code
PMC Chapter
Chapter 15.02
Chapter 15.04
Chapter 15.08
Chapter 15.10
Chapter 15.12
December 6, 2022, Item #12
2022 California Mechanical Code
2022 California Energy Code
2022 California Historical Building Code
2022 California Existing Building Code
2022 California Green Building Standards Code
2022 California Referenced Standards Code
2022 California Fire Code
Chapter 15.16
Chapter 15.18
Chapter 15.19
Chapter 15.21
Chapter 15.22
Chapter 15.23
Chapter 15.24
Most of the significant changes found in the 2022 California Building Standards Code are modifications to existing requirements or additional requirements related to building construction.
Several modifications omitted conflicting code language and references. Adoption of this Ordinance will amend PMC, Title 15 with the following highlights (in no particular order):
New specific aging-in-place design elements in new residential construction to facilitate access to specific features and to allow people to stay longer in their homes as they age.
Photovoltaic support structure with a minimum clear height of seven feet and six inches may include habitable space beneath it.
Building permit expiration is extended from six months to 12 months. Every permit shall remain valid if the work on the site authorized by the permit is commenced within 12 months after its issuance.
Small and large family child care meeting Health and Safety Code requirements can operate in R-2 occupancies (includes apartments, dormitories and boarding houses).
An accessory building is required to be constructed of noncombustible or ignition resistant materials meeting Class A fire rating.
Three-dimensional (3D) printed buildings are permissible if the manufacturer is certified to UL 3401 and approved by the City building official.
The City shall have local Authority Having Jurisdiction (AHJ) for buildings less than 120 square feet. A local amendment requires a building permit when in the Very High Fire Hazard Zone.
Within Rural Residential zones (previously all residential zones), structures located within a Very High Fire Hazard Zone shall be setback a minimum of 30 feet from property lines and biological open space easements, except that an established nonconforming portion of the building shall be used as the required setback distance for any detached accessory structures or additions to that building.
A local amendment requires a fuel modification zone to occur within 1 O feet (previously 20 feet) from each side of the driveway or a public or private road adjacent to a property.
The California Swimming Pool Safety Act (statewide) is now mandatory, not optional for local adoption (City currently complies).
A new definition is added for plants less likely to ignite, contribute heat or spread flame. A list of plants is also included.
Only projects with building permit applications submitted after January 1, 2023 will be affected by the new California Building Standards Codes and this Ordinance will be effective February 15, 2023, thirty days after City Council adoption. Building permits in plan check prior to December 31, 2022 will not be subject to the new regulations.
Staff is only proposing local amendments to the 2022 Building Code, 2022 Residential Code and 2022 Fire Code due to local zoning and/or climatic, geography and topographic conditions that necessitate greater life and safety protection.
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December 6, 2022, Item #12
Fire Permit and Inspection Fees
As part of its 2022 Building Standards Code adoption, staff determined that currently adopted Fire inspection fees do not completely align with the new Fire Code updates. As such, staff is proposing to realign current Fire inspection fees to the proposed Fire Code updates. This realignment primarily includes removing fees for inspection work no longer required by code, re-titling existing fees to match language now used in the Fire Code to ensure consistency, and adding a few fees for inspections now required under Fire Code. The newly added permit and inspection fee categories that have been added to the Master Fee Schedule are as follows:
New Fire Code Permit and Inspection Fees:
Additive Manufacturing $ 235 Initial Fee
$ 117 Reinspection
Covered and Open Mall Buildings $ 163 Initial Fee
$ 82 Reinspection
Energy Storage Systems $ 235 Initial Fee
$ 117 Reinspection
Fire Hydrants and Valves $ 117 Initial Fee
$ 52 Reinspection
Green waste Recycling, Mulching, Composting $ 163 Initial Fee Operations $ 82 Reinspection
$ 187 Initial Fee Lithium Batteries $ 82 Re inspection
$ 163 Initial Fee Live Audiences $ 82 Reinspection
Mobile Fueling and Hydrogen-Fueled Vehicles $ 117 Initial Fee $ 52 Reinspection
Motor Fuel-Dispensing Facilities $ 117 Initial Fee
$ 52 Reinspection
Outdoor Assembly Event $ 163 Initial Fee
$ 82 Reinspection
$ 235 Initial Fee Plant Extraction Systems $ 117 Re inspection Private Fire Hydrants $ 117 Initial Fee
$ 52 Reinspection
Production Facilities $ 163 Initial Fee
$ 82 Reinspection
Pyrotechnic Special Effects $ 163 Initial Fee
$ 82 Reinspection
Rooftop Heliports $ 117 Initial Fee
$ 52 Reinspection
For any new inspection fee categories added, staff aligned the fee amount to similar, already adopted, Fire Department inspection fees. By law, the City may not adopt fees which exceed the cost of providing the service. Given Fire inspection fees were last adjusted in 2009, aligning any new fees to the Fire inspection fees last updated in 2009 ensures the City is in compliance with laws governing cost recovery.
4 of 43
December 6, 2022, Item #12
Similar to other fee adjustments approved by City Council, an annual fee adjustment using published industry economic factors is also recommended to assist with cost recovery as operational costs increase over time. Fire inspection fees set forth in Exhibit 1 to the Resolution will increase each July commencing July 1, 2023 by the annual change in the Consumer Price Index (CPI) -All Urban Consumers, San Diego-Carlsbad (2021 = 319.761 ), as published by the United States Bureau of Labor Statistics, subject to rounding to the nearest whole dollar.
As part of the Fiscal Year 2022-23 Operating Budget, the City Council authorized staff to conduct a comprehensive fee study for Fire plan review, permitting and inspection fees, Development Services plan review, permitting, and inspection fees and other similar fee types. While the proposed amendments to the Fire inspection fees are not a comprehensive fee update, they do provide the framework to support the fee study staff will commence later this fiscal year.
In order to amend the fee schedule, it is necessary for the City Council to adopt a Resolution authorizing this action.
Environmental Review:
This project is exempt from the provIsIons of the CEQA pursuant to CEQA Guidelines Section 15061 (b)(3) in that it entails the adoption of State-mandated Building Codes, with minor local amendments, and permit and inspection fee updates and there is no possibility that this activity will have an effect on the environment.
Fiscal Impact:
None with the adoption of the code amendments. While staff can not quantify the fiscal impacts of the amendments of the Fire inspection fees, they are anticipated to be minimal at this time since staff did not perform a comprehensive fee study, but rather realigned fees to the new Fire code using previously adopted fees as references.
Public Notification:
A notice of Public Hearing was published in the Poway News Chieftain on Thursday, November 24, 2022 and Thursday, December 1, 2022.
Attachments:
A. Ordinance Amending Chapter 15.02 (Administrative Code), 15.04 (Building Code), 15.08 (Electrical Code), 15.10 (Residential Code), 15.12 (Plumbing Code), 15.16 (Mechanical Code),
15.18 (Energy Code), 15.19 (Historical Building Code), 15.21 (Existing Building Code), 15.22 (Green Building Code), 15.23 (Referenced Standards Code), and 15.24 (Fire Code) of the PMC and Findings Supporting the City of Poway Amendments to the California Fire Code B. Resolution Amending Existing and Establishing New Fees for Fire Permit and Inspection Fees within the Fire Department section of the Master Fee Schedule Reviewed/Approved By:
Wendy aserman
Assistant City Manager
5 of 43
Reviewed By:
Alan Fenstermacher
City Attorney City Manager
December 6, 2022, Item #12
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AMENDING POWAY MUNICIPAL CODE
(PMC) TITLE 15, ADOPTING BY REFERENCE THE 2022
CALIFORNIA BUILDING STANDARDS CODES, WITH LOCAL
AMENDMENTS
WHEREAS, On December 3, 2019, the City Council adopted the 2019 Edition of the California Building Standards Codes, including the introduction of a centralized California Fire Code. These codes, which are adopted by reference, have recently been replaced by the 2022 Edition of the California Building Standards Code. This Ordinance amends Chapter 15.02 (Administrative Code), 15.04 (Building Code), 15.08 (Electrical Code), 15.10 (Residential Code),
15.12 (Plumbing Code), 15.16 (Mechanical Code), 15.18 (Energy Code), 15.19 (Historical Building Code), 15.21 (Existing Building Code), 15.22 (Green Building Code), 15.23 (Referenced Standards Code), and 15.24 (Fire Code) of the Poway Municipal Code (PMC). The 2022 Edition codes will go into effect on January 1, 2023. The California Building Standards Commission published the 2022 California Building Standards Code which is based on the 2021 International Building Code, the 2021 International Residential Code, the 2021 International Existing Buildings Code, the 2021 International Fire Code, the 2021 Uniform Plumbing Code, the 2021 Uniform Mechanical Code, and the 2020 National Electrical Code. The purpose of this Ordinance is to update the PMC to the current State-mandated code edition and to incorporate local amendments which address the City's specific needs based upon zoning regulations and unique climate, topography, and geography;
WHEREAS, the City Council of the City of Poway finds that the City of Poway has certain climatic, geographic, and topographic features that can have a deleterious effect on emergency services such as fire protection and emergency medical services; WHEREAS, the City Council of the City of Poway finds that the modifications and changes to the 2022 California Fire Code are reasonably necessary because of the local climatic, geographical, and topographical conditions incorporated by reference herein as Exhibit A; WHEREAS, certain amendments to the 2022 California Fire Code are necessary to mitigate said deleterious effects to the extent possible; WHEREAS, California Health and Safety Code Section 17958 requires that jurisdictions adopt building regulations that are substantially the same as those adopted by the California Building Standards Commission; and contained in the California Building Standards Code; WHEREAS, Sections 50022.1 through 50022.10, inclusive, of the California Government Code provide authority for cities to adopt state codes, or portions of state codes, by reference; WHEREAS, code amendments adopted by the State of California shall take precedence over the 2021 International Fire Code language. The 2021 International Fire Code language shall be used for those code sections not adopted by the State; 6 of 43 ATTACHMENT A
December 6, 2022, Item #12
Ordinance No.
WHEREAS, local amendments adopted by the City of Poway shall take precedence over both the 2021 International Fire Code and 2022 California Fire Code provisions; WHEREAS, and on December 6, 2022, the City Council held a duly advertised public hearing to solicit comments from the public, both for and against, relative to this Ordinance; and WHEREAS, the City Council has read and considered the agenda report for the proposed project and has considered other evidence presented at the public hearing.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:
SECTION 1: The above recitations are true and correct.
SECTION 2: The City Council finds that local climatic; geographical and topographical conditions, including the terrain; high summer month temperatures; population growth rate; housing and occupancy conditions and needs; and the environment existing in the City of Poway constitute conditions which require that the California Building Standards Code be modified as set forth herein.
SECTION 3: The City Council hereby approves this ordinance and amends certain sections of the PMC as specified below. Removals are indicated with strikethroughs and additions are indicated with underline.
SECTION 4: This project is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061 (b)(3) in that it entails the adoption of State-mandated Building Codes, with minor amendments, and there is no possibility that this activity will have an effect on the environment.
SECTION 5: Chapters 15.02, 15.04, 15.08, 15.10, 15.12, 15.16, 15.18, 15.19, 15.21,
15.22, 15.23, and 15.24, of the PMC shall be amended as follows [entire Chapter is shown]:
Chapter 15.02
ADMINISTRATIVE CODE
Sections:
15.02.010 Adoption of the California Administrative Code, Part 1, Title 24 of the California Code of Regulations.
15.02.010 Adoption of the California Administrative Code, Part 1, Title 24 of the California Code of Regulations. There is hereby adopted and incorporated by reference herein that certain document known as the California Administrative Code, Part 1, Title 24 of the 2:G-4-92022 California Code of Regulations, published by the California Building Standards Commission. Said document is adopted without change for the purpose of establishing the administration, organization, and enforcement of rules and regulations for the 2:G-4-92022 California Code of Regulations adopted by the City. All provisions of the California Administrative Code, 7 of 43
December 6, 2022, Item #12
Ordinance No.
~2022 Edition, are referred to, adopted and made a part of this code, as though fully set forth herein.
Sections:
15.04.010
Regulations.
15.04.020
15.04.030
15.04.040
15.04.050
15.04.060
Chapter 15.04
BUILDING CODE
Adoption of the California Building Code, Part 2, Title 24 of the California Code of Findings.
Deletions, revisions, and additions to the ~2022 California Building Code.
Section 105.2 amended.
Table 1505.1 amended.
Appendices C, H and I adopted.
15.04.010 Adoption of the California Building Code, Part 2, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City Building Code, for the purpose of prescribing regulations in the City of Poway for the erection, construction, enlargement, alteration, repair, moving, removal, conversion, demolition, occupancy, equipment, use, height, area, and maintenance of buildings and structures, the ~2022 California Building Code, Part 2, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code, as defined in the California State Health and Safety Code Section 18901 et seq. which is based on the International Building Code, 2-Q4g2021 Edition, including those appendix chapters adopted by this chapter. Except as otherwise provided by this chapter and Chapter 15.02 PMC, all erection, construction, enlargement, alteration, repair, moving, removal, conversion, demolition, occupancy, equipment, use, height, area and maintenance of buildings and structures within the City of Poway shall be in conformance with the ~2022 California Building Code, published by the California Building Standards Commission, which is based on the International Building Code, 2-Q4g2021 Edition, and the adopted appendix chapters, published by the International Code Council, 4051 West Flossmoor Road, Country Club Hills, IL 60478.
15.04.020 Findings. The City of Poway has many large brush-covered hillsides. The City is subject to frequent Santa Ana conditions consisting of dry gusting winds, which create extreme fire dangers. The City Council specifically finds that these geographic and topographic conditions necessitate greater fire protection than that provided by the ~2022 California Building Code.
Therefore, this chapter alters the International Building Code, 2-Q4g2021 Edition, to require more fire-retardant roof coverings.
15.04.030 Deletions, revisions and additions to the ~2022 California Building Code.
Deletions, revisions and additions to t_he ~2022 California Building Code shall be as set forth in PMC 15.04.040 through 15.04.060.
15.04.040 Section 105.2 amended. Section 105.2, exemption 2, of the 2G--+-92022 California Building Code is amended to read as follows:
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105.2 Work Exempt from Permit.
Building:
1.,, One-story detached accessory structures used as tool and storage sheds, playhouses, and similar uses, provided that the floor area does December 6, 2022, Item #12
Ordinance No.
Page4
not exceed 120 square feet (11.15 m2), except that a permit is required for any structure located in the Very High Fire Hazard Zone.
2. Fences not over 6 feet {1,829 mm) high.
15.04.050 Table 1505.1 Amended. Table 1505.1 of the ~2022 California Building Code is amended to read as follows:
IA 18
A A
TABLE 1505.1
MINIMUM ROOF COVERING CLASSIFICATION
FOR TYPES OF CONSTRUCTION
IIA 118 IIIA 1118 IV
A A A A A
VA VB
A A
15.04.060 Appendices C, H and I adopted. Appendices* Chapters C, H and I of the ~2022 California Building Code, are adopted.
Chapter 15.08
ELECTRICAL CODE
Sections:
15.08.010 Adoption of the California Electrical Code, Part 3, Title 24 of the California Code of Regulations.
15.08.010 Adoption of the California Electrical Code, Part 3, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City Electrical Code for the purpose of prescribing regulations in the City of Poway for the installation, alteration or repair of electrical systems and permit requirements and inspection thereof, the ~2022 California Electrical Code, Part 3, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code, which is based on the National Electrical Code, ~2020 Edition. Except as otherwise provided by this Chapter and Chapter 15.02 of the City of Poway Municipal Code, all installation, alteration or repair of electrical systems within the City of Poway shall be in conformance with the ~2022 California Electrical Code, published by the California Building Standards Commission, which is based on the National Electrical Code, ~2020 Edition, published by the National Fire Protection Association, Battery March Park, Quincy, Massachusetts, 02269.
Sections:
15.10.010
15.10.020
15.10.030
15.10.040
15.10.050
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Chapter 15.10
RESIDENTIAL CODE
Adoption of the California Residential Code, Part 2.5, Title 24 of the California Code of Regulations.
Findings.
Deletions, revisions and additions.
Section R105.2 amended.
Section R902.1.ii amended.
December 6, 2022, Item #12
Ordinance No.
15.10.060 Appendices* AH, AX, and AZ M--adopted.
15.10.010 Adoption of the California Residential Code, Part 2.5, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as City Residential Code for the purpose of prescribing regulations in the City of Poway, for the construction, alteration or repair of use and occupancy, location and maintenance of detached one-and two family dwellings and townhouses not more than three stories above grade plane and permit requirements and inspection thereof, ~2022 California Residential Code, Part 2.5, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code published by the California Building Standards Commission which is based on the International Residential Code published by the International Code Council, 4051 West Flossmoor Road, Country Club Hills, IL 60478.
15.10. 020 Findings. The City of Poway has many large brush-covered hillsides. The City is subject to frequent Santa Ana conditions consisting of dry gusting winds, which create extreme fire dangers. The City Council specifically finds that these geographic and topographic conditions necessitate greater fire protection than that provided by the ~2022 California Residential Code. Therefore, this chapter alters the California Residential Code to require more fire-retardant roof coverings.
15.10.030 Deletions, revisions and additions. Deletions, revisions and additions to the ~2022 California Residential Code shall be as set forth in PMC 15.10.040 through 15.10.060.
15.10.040 Section R105.2 amended. Section R105.2, exemption 2, of the 2G4-92022 California Residential Code is amended to read as follows:
R105.2 Work Exempt from Permit.
Building:
1. Other than storm shelters, one-story detached accessory structures, provided that the floor area does not exceed 120 square feet (11.15m2), except that a permit is required for any structure located in the Very High Fire Hazard Zone.
2. Fences not over 6 feet (1,829 mm) high.
15.10.050 Section R902.1 . .f.J amended. Section R902.1 . .f.J of the California Residential Code is amended to read as follows:
R902.1 . .f.J Roof coverings in all other areas. The entire roof covering of every existing structure where more than 50 percent of the total roof area is replaced within any one year period, the entire roof covering of every new structure, and any roof covering applied in the alteration, repair or replacement of the roof of every existing structure, shall be a fire-retardant roof covering that is at least Class A.
15.10.060 Appendices* AH, AX and AZ M--adopted. Appendices* AH, AX and AZ M--of the ~2022 California Residential Code is adopted.
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December 6, 2022, Item #12
Sections:
15.12.010
15.12.020
Chapter 15.12
PLUMBING CODE
Ordinance No.
Adoption of the California Plumbing Code, Part 5, Title 24 of the California Code of Regulations.
Appendices G and I adopted.
15.12.010 Adoption of the California Plumbing Code, Part 5, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City Plumbing Code for the purpose of prescribing regulations in the City of Poway for the construction, alteration, moving, demolition, repair and use of all plumbing, gas or drainage piping and systems or water heating or treating equipment in or on any building or structure or outdoors on any premises or property, the 204-92022 California Plumbing Code, Part 5, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code, as defined in the California Health and Safety Code, Section 18901 et seq. which is based on the Uniform Plumbing Code, 204-92021 Edition. Except as otherwise provided by this Chapter and Chapter 15.02 of the City of Poway Municipal Code, all construction, alteration, moving, demolition, repair and use of all plumbing, gas or drainage piping and systems or water heating or treating equipment within the City of Poway shall be in conformance with the 204-92022 California Plumbing Code published by the California Building Standards Commission which is based on the Uniform Plumbing Code, ~2021 Edition, published by the International Association of Plumbing and Mechanical Officials, 20001 Walnut Drive South, Walnut, California, 91789-2825.
15.12.020 Appendices G and I Adopted. Appendices G and I of the California Plumbing Code are adopted.
Sections:
15.16.010
Chapter 15.16
MECHANICAL CODE
Adoption of the California Mechanical Code, Part 4, Title 24 of the California Code of Regulations.
15.16.010 Adoption of the California Mechanical Code, Part 4, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City Mechanical Code for the purpose of prescribing regulations in the City of Poway for the erection, installation, alteration, repair, relocation, replacement, addition to, use or maintenance of any heating, ventilating, cooling, refrigeration systems, incinerators or other miscellaneous heat-producing appliances, the 2-G492022 California Mechanical Code, Part 4, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code, as defined in the California Health and Safety Code, Section 18901 et seq. which is based on the Uniform Mechanical Code, ~2021 Edition. Except as otherwise provided by this Chapter and Chapter 15.02 of the City of Poway Municipal Code, all erection, installation, alteration, repair, relocation, replacement, addition to, use or maintenance of any heating, ventilating, cooling, refrigeration systems, incinerators or other miscellaneous heat producing appliances shall be in conformance with 204-92022 California Mechanical Code, published by the California Building Standards Commission and any rules and regulations promulgated pursuant thereto.
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December 6, 2022, Item #12
Sections:
15.18.010
Chapter 15.18
ENERGY CODE
Ordinance No.
Adoption of the California Energy Code, Part 6, Title 24 of the California Code of Regulations.
15.18.010 Adoption of the California Energy Code, Part 6, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City Energy Code for the purpose of prescribing regulations in the City of Poway for the conservation of energy the 204-92022 California Energy Code, Part 6, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code, as defined in the California Health and Safety Code, Section 18901 et seq. and the California Energy Code, 204-92022 Edition. Except as otherwise provided by this Chapter and Chapter 15.02 of the City of Poway Municipal Code, all construction of buildings where energy will be utilized shall be in conformance with the 204-92022 California Energy Code and any rules and regulations promulgated pursuant thereto, including the California Energy Code, 204-92022 Edition, published by the California Energy Commission.
Sections:
15.19.010
Chapter 15.19
HISTORICAL BUILDING CODE
Adoption of the 204-92022 California Historical Building Code, Part 8, Title 24 of the California Code of Regulations.
15.19.010 Adoption of the 204-92022 California Historical Building Code, Part 8, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City's Historical Building Code for the purpose of prescribing regulations in the City of Poway to provide alternative building regulations for the rehabilitation, preservation, restoration, or relocation of designated historic buildings, the 204-92022 California Historical Building Code, Part 8, Title 24 of the California Code of Regulations, a portion of the 204-92022 California Building Standards Code, as defined in the California Health and Safety Code, Section 18901 et seq. (authorized by Health and Safety Code Sections 18950 through 18961 ).
Sections:
15.21.010
Chapter 15.21
EXISTING BUILDING CODE
Adoption of the 204-92022 California Existing Building Code, Part 10, Title 24 of the California Code of Regulations.
15.21.010 Adoption of the 204-92022 California Existing Building Code, Part 10, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City's Existing Building Code for the purpose of prescribing regulations in the City of Poway to provide alternative building regulations for the rehabilitation, preservation, restoration, or relocation of existing buildings, the 2-G-1-92022 California Existing Building Code, Part 10, Title 24 of the California Code of Regulations, a portion of the 2-G-1-92022 California Building Standards 12 of 43
December 6, 2022, Item #12
Ordinance No.
Code, as defined in the California Health and Safety Code, Section 18901 et seq, which is based on the 2Q4.g2021 International Existing Buildings Code.
Chapter 15.22
GREEN BUILDING STANDARDS CODE
Sections:
15.22.010 Adoption of the California Green Building Standards Code, Part 11, Title 24 of the California Code of Regulations.
15.22.010 Adoption of the California Green Building Standards Code, Part 11, Title 24 of the California Code of Regulations. There is adopted and incorporated by reference herein as the City Green Building Standards Code for the purpose of prescribing regulations in the City of Poway for the enhancement of the design and construction of buildings through the use of building concepts having a reduced negative impact or positive environmental impact and encourage sustainable construction practices the ~2022 California Green Building Standards Code, Part 11, Title 24 of the California Code of Regulations, a portion of the California Building Standards Code, as defined in the California Health and Safety code, Section 18901 et seq, and the California Green Building Standards Code. Except as otherwise provided by this Chapter and Chapter 15.02 of the City of Poway Municipal Code, all construction of buildings shall be in conformance with the 204-92022 California Green Building Standards Code and any rules and regulations promulgated pursuant thereto, including the California Green Building Standards Code ~2022 Edition, published by the California Building Standards Commission.
Sections:
15.23.010
Chapter 15.23
REFERENCED STANDARDS CODE
Adoption of the ~2022 California Referenced Standards Code, Part 12, Title 24 of the California Code of Regulations.
15.23.010 Adoption of the ~2022 California Referenced Standards Code, Part 12, Title 24 of the California Code of Regulations. The California Referenced Standards Code, 204-92022 edition, Chapter 15.23 is adopted by reference without change to Buildings and Construction Title
15. Sections:
Chapter 15.24
FIRE CODE
15.24.01 O Adoption of California Fire Code.
15.24.020 Administration.
15.24.025 Appeals.
15.24.030 Definitions.
15.24.040 General precautions against fire.
15.24.050 Fire service features.
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December 6, 2022, Item #12
Ordinance No.
15.24.060 Building services and systems.
15.24. 070 Fire sprinkler systems.
15.24.080 Construction requirements for existing buildingsFire safety during construction.
15.24.090 Fire safety during constructionWildland urban interface fire area.:.
15.24.100 Wild land-urban interface fire area Fireworks display.:.
15.24.110 Fireworks displayFlammable and combustible liquids.:.
15.24.120 Chapter 80 Referenced Standard$liquefied petroleum gases.:.
15.24.130 Appendix B, fire-flow requirements for buildingsChapter 80 Referenced Standards.:.
15.24.140 Conflict.A.ppendix B, fire flow requirements for buildings.:.
15.24 .150 Conflict.
15.24.010 Adoption of California Fire Code
The City of Poway adopts by reference the 202249 California Fire Code, excluding Section 103, and including Appendix Chapters 4 and Appendices B, C,J;_,_ F, H, Land oi, as published by the International Code Council, except those portions that are deleted, modified, or amended by this chapter. One copy of the above-mentioned code has been and is now filed in the office of the City Clerk or the fire code official, City of Poway, and the same is adopted and incorporated as fully as if set out at length herein. From the effective date of the ordinance codified in this chapter, the provisions thereof shall be controlling within the limits of the City of Poway.
15.24.020 Administration.
Section 102.13 is added to read:
102.13 Repeal of conflicting ordinances, resolutions or motions. All former ordinances, resolutions, motions, or parts thereof that are conflicting or inconsistent with the provisions of this Ordinance or of the Code or standards hereby adopted are repealed.
Section 104.§!8 is modified to read:
104.§!8 Modifications. Whenever there are practical difficulties involved in carrying out the provisions of this code, the fire code official shall have the authority to grant modifications for individual cases, provided the fire code official shall first find that special individual reason makes the strict letter of this code impracticable, and the modification is in compliance with the intent and purpose of this code and that such modification does not lessen health, life and fire safety requirements. The applicant's request for a modification shall state the specific sections(s) for which a modification is requested, material facts supporting the contention of the applicant, the details of the modification or mitigating measure proposed and, if applicable, a map showing the proposed location and citing of the modification or mitigation measure. The details of action granting modifications shall be recorded and entered in the files of the department of fire prevention.
Section 104.1 ~2 is added to read:
104.1~2 Cost recovery. The purpose of this section is to establish authority to obtain reimbursement from responsible individuals for the expenses of any emergency response and/or enforcement action by the City of Poway to protect the public from criminal or negligent activities, and from fire or hazardous substances.
Section 104.1 ~2.1 is added to read:
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December 6, 2022, Item #12
Ordinance No.
104.1~2.1 Reimbursement. In accordance with Health and Safety Code Section 13000 et seq., an individual who acts negligently or in violation of the law and thereby requires the jurisdiction to provide an emergency response to a danger posed by a fire or hazardous substance shall be liable for reimbursement to the agency for the costs incurred In accordance with Government Code Sections 53150 through 53158, any individual who is under the influence of an alcoholic beverage, or any drug, or the combined influence of an alcoholic beverage or any drug, and whose negligent operation of a motor vehicle, boat or vessel, or civil aircraft caused by that influence, proximately causes any incident and thereby requires the agency to provide an emergency response, shall reimburse the agency for the cost incurred.
Section 105.3.9 is added to read:
105.3.9 Expense recovery. The fire code official may impose a fee for recovery of expenses incurred to enforce the fire prevention provisions of this code. Such expense recovery fees shall be established by a resolution of the City Council.
Section 105.6.532 is added to read:
105.6.5~2 Christmas tree lots. An operational permit is required to operate a Christmas tree lot with or without flameproofing services.
Section 105.6.53 is added to read:
105.6.53 Green waste recycling, mulching, composting operations and storage. A operational permit is required for green 111aste recycling, mulching, composting operations and storage.
15.24.025 Appeals.
Section 11100.1 is modified to read:
11100.1 Appeals procedure established. Whenever the fire code official has denied a permit or other entitlement, or when it is alleged that a mistake has been made in the interpretation or application of the code, the applicant may appeal the decision of the fire code official to the City Manager by filing a written appeal with the City Clerk within 30 days of the decision. If the appeal is denied by the City Manager, the City Manager's decision may be appealed to the City Council by filing a written appeal with the City Clerk within 30 days of the City Manager's decision and paying of the appeal fee set forth in the City's Master Fee Schedule for administrative appeals.
Section 11~9.4 is modified to read:
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11~9.4 Violation penalties. It is unlawful for any person to violate any of the provisions of this Code or standards hereby adopted by reference as a part of this Code, or to fail to comply with any lawful order issued pursuant to this Code, or to violate any permit or condition of approval issued pursuant to this Code. It is further unlawful for any person to fail to comply with any lawful order issued pursuant to this Code by the City Attorney or by a court of competent jurisdiction. A violation of any provision of this Code, or failure to comply with orders or conditions issued pursuant to this Code, shall constitute a December 6, 2022, Item #12
Ordinance No.
misdemeanor or (in the discretion of the prosecuting attorney) an infraction, in any event as set forth in PMC Chapter 1.08. In addition to any criminal penalties any violation may also be enforced by civil action, and shall be subject to civil and administrative penalties, as set forth in PMC Chapters 1.08 and 1.10.
Section 11~24.4 is modified to read:
11~24.4 Failure to comply. It is unlawful for any person to continue any work after having been served with a stop-work order, except such work expressly identified in the stop work order as necessary to correct a violation or unsafe condition.
15.24.030 Definitions.
The following definitions are added or modified to Section 202:
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Aerated Static Pile. A composting process that uses an air distribution system to either blm~., or draw air through the pile. Little or no pile agitation or turning is performed.
Accessory Dwelling Unit. An Accessory Dwelling Unit (ADU) is an attached or detached residential dwelling unit which provides complete independent living facilities for one or more persons on the same property as a single-family dwelling in a residential zone. The unit shall meet the definition of an ADU in the Government Code Section 65852.2.
Blaster. A person 1Nho has been approved by the Sheriff to conduct blasting operations and vvho has been placed on the list of approved blasters. The listing shall be valid for one year unless revoked by the Sheriff.
Blasting Operation. The uses of an explosive device or explosive material to destroy, modify, obliterate or remove any obstruction of any kind.
Blasting Permit. A permit issued by the Issuing Officer pursuant to Section 105.6.14. The permit shall apply to a specific site and shall be valid for a period not to exceed one year.
Blast Site. The geographically defined area, as shown on a project map or plot plan, where a blaster is authorized by a blasting permit issued under Chapter 56 to conduct a blasting operation.
Blast Site. The geographically defined area, as shown on a pnaject map or plot plan, where a blaster is authorized by a blasting permit issued under Chapter 56 to conduct a blasting operation.
Chipping and Grinding. An activity that mechanically reduces the size of organic matter.
Combustible Vegetation. Material that in its natural state will readily ignite, burn and transmit fire from native or landscape plants to any structure or other vegetation.
Combustible vegetation includes dry grass, brush, 1Needs, litter or other flammable vegetation that creates a fire hazard.
Composting Operations. An operation that is conducted for the purpose of producing compost and shall be by means of one or a combination of the following processes used to produce a compost product: static pile, windrmv pile, or aerated static pile.
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Ordinance No.
Dead End Road. A road that has only one point of vehicular ingress/egress, including cul de sacs and looped roads.
Defensible Space. An area either natural or man-made, where material capable of allowing a fire to spread unchecked has been treated, cleared or modified to slow the rate and intensity of an advancing wildfire and to create an area for fire suppression operations to occur. Distance measurements for defensible space shall be measured on a horizontal plane and in accordance with Section Four of the City of Poway Landscape and Irrigation Design Manual.
Fire Access Road or Fire Access Roadway. A road that provides fire apparatus access from a fire station to a facility, building or portion thereof. This is a general term inclusive of all other terms such as fire lane, public street, private street, parking lot lane, access roadway, and driveway.
Fire Authority Having Jurisdiction (FAHJ). The designated entity providing enforcement of fire regulations as they relate to planning, construction, and development. This entity for the City of Poway also provides fire suppression and other emergency services.
Fire Department. Any regularly organized fire department regularly charged with the responsibility of providing fire protection to the jurisdiction.
Fire Hazard. Anything that increases or could cause an increase of the hazard or menace of fire to a greater degree than customarily recognized as normal by persons in the public service regularly engaged in preventing, suppressing, or extinguishing fire; or anything or act, which could obstruct, delay, hinder, or interfere with the operations of the fire department; or egress of occupants in the event of fire.
Fire Protection Plan (FPP). The FPP is a document prepared for a specific project or development proposed in the wildland-urban interface fire area that describes ways to minimize and mitigate potential loss from wildfire exposure, with the purpose of reducing impact on the community's fire protection delivery system.
Fuel Break. An area, strategically located for fighting anticipated fires, where the native vegetation has been permanently modified or replaced so that fires burning into it can be more easily controlled. Fuel breaks divide fire-prone areas into smaller areas for easier fire control and to provide access for fire-fighting.
Fuel Modification Zone. A strip of land where combustible vegetation has been thinned or modified or both and partially or totally replaced with approved fire-resistant and/or irrigated plants to provide an acceptable level of risk from vegetation fires. Fuel modification reduces the radiant and convective heat on a structure and provides valuable defensible space for firefighters to make an effective stand against an approaching fire front.
Green Waste. Organic material that includes, but is not limited to, yard trimmings, plant waste, manure, untreated 'Nood wastes, paper products, and natural fiber products.
Hazardous Fire Area. Any geographic area mapped by the State or designated by a local jurisdiction as a moderate, high or very high fire hazard area or which the FAHJ has determined is a hazardous fire area, because the type and condition of vegetation, December 6, 2022, Item #12
Ordinance No.
topography, weather and structure density increase the probability that the area will be susceptible to a wildfire.
Hogged Materials. Mill 11.1aste consisting mainly of hogged bark but may include a mixture of bark, chips, dust, or other by products from trees and vegetation.
Mulching. the process by which mixed green waste is mechanically reduced in size for the purpose of making compost.
Open Space Easement. Any right or interest in perpetuity or for a term for years in open space land, as that term is defined in Government Code section 51051, acquired by the County, a city or a nonprofit organization where the instrument granting the right or interest imposes restriction on use of the land, to preserve the land for public use or enjoyment of the natural or scenic character of the land.
Response Time. The elapsed time from the fire department's receipt of the first alarm to when the first fire unit arrives at the scene.
Travel Time. The estimated time it would take for a responding agency to travel from the fire station to the furthest structure in a proposed development project, determined by measuring the safest, most direct, appropriate, and reliable route with consideration given to safe operation speeds for heavy fire apparatus.
Windrow Composting Process. The process in which compostable material is placed in elongated piles. The piles or windro1Ns are aerated and/or mechanically turned on a periodic basis.
Wood Chips. Chips of various species of 1.vood produced or used in chipping and grinding operations.
15.24.040 General precautions against fire.
Section 304.1.4 is added to read:
304.1.4 Outdoor carnivals and fairs. Outdoor carnivals and fairs shall only be conducted on grounds free of combustible vegetation or trimmed to the satisfaction of the FAHJ.
Section 305.6 is added to read:
305.6 Rockets, model aircraft and similar devices. Rockets, model airplanes, gliders, balloons, sky lanterns, floating luminaries or similar devices-powered with an engine, propellant, open flame, or other feature liable to start or cause a fire shall not be projected into or across hazardous fire areas without prior approval of the fire code official.
Section 307 .5 is modified to read:
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307.5 Attendance. Open burning, bonfires, recreational fires and the use of portable outdoor fireplaces shall be constantly attended by an adult until the fire is extinguished. A minimum of one portable fire extinguisher complying with section 906 with a minimum 4- A rating or other approved on-site fire-extinguishing equipment, such as dirt, sand, water barrel, garden hose or water truck, shall be available for immediate utilization.
December 6, 2022, Item #12
Ordinance No.
Section 321,4 is added to read:
SECTION 321,4
STORAGE OF FIREWOOD
321,4.1 General. Firewood shall not be stored in unenclosed space beneath a building or structure, on a deck or under eaves, a canopy or other projection or overhang. WAeA required by the fire code official, fEirewood or other combustible material stored in the defensible space surrounding a structure shall be located at least 30 feet from any structure and separated from the crown of any trees by a minimum of 15 feet, measured horizontally. Firewood and combustible materials not for use on the premises shall be stored so as to not pose a fire hazard.
15.24.050 Fire service features.
Section 503.2.1 is modified to read:
503.2.1 Dimensions. Fire apparatus 3ccess roads shall have an unobstructed, improved width of not less than 20 feet, except single-family residential driveways serving no more than two improved parcels containing dwelling units shall have a minimum of 16 feet of unobstructed improved width. In most cases, the City of Poway construction standards for streets (Chapter 12.20 PMC) will be more restrictive. The more restrictive standard shall apply. Vertical overhead clearance shall be a minimum of 13 feet 6 inches.
Exceptions:
1. Upon approval by the fire code official, vertical clearances or width may be reduced provided such reduction does not impair access by fire apparatus and approved signs are installed and maintained indicating the established vertical clearance.
2. Fire access roadways, gated entrances with card readers, guard stations, or center medians, which have separated lanes of one-way traffic shall be not less than 12 feet wide per lane.
Section 503.2.3 is modified to read:
503.2.3 Surface. Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus not less than 75,000 pounds ~ geotechnical report unless authorized by the FAHJ and shall be provided with an approved paved surface so as to provide all-weather driving capabilities. A paved surface shall mean asphalt, concrete, or §!_permeable paver system, except that decomposed granite is permissible for residential driveways.
Section 503.2.4 is modified to read:
503.2.4 Turning Radius. The turning radius of a fire apparatus access road shall be a minimum of 28 feet as measured to the inside edge of the improvement width or as approved by the fire code official.
Section 503.2.5 is modified to read:
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503.2.5 Dead Ends. All dead-end fire access roads in excess of 150 feet in length shall be provided with approved provisions that allow emergency apparatus to turn around. A cul-de-sac shall be provided in residential areas where the access roadway serves more than two improved parcels. The minimum, unobstructed paved radius width for a cul-de sac shall be 38 feet in residential areas. The fire code official shall establish a policy identifying acceptable turnarounds for various project types.
Section 503.2. 7 is modified to read:
503.2. 7 Grade. The gradient for a fire apparatus access roadway shall not exceed 20 percent. Grades exceeding 15 percent (incline or decline) shall be constructed of Portland cement concrete (PCC), with a deep broom finish perpendicular to the direction of travel, or equivalent, to enhance traction. Grades exceeding 10 percent shall be constructed of asphalt or PCC. Permeable paver systems shall not be used for grades exceeding 1 O percent.
Section 503.2.8 is modified to read:
503.2.8 Angles of Approach and Departure. The angle of departure and the angle of approach of a fire access roadway shall not exceed seven degrees (12 percent) or as approved by the fire code official.
Section 503.3.1 is added to read:
503.3.1 Marking of Fire Apparatus Access Roads. When required, approved signs or other approved notices shall be provided and maintained for fire apparatus access roads to identify such roads and prohibit the obstruction thereof or both. All new public roads, all private roads within major subdivisions, and all private road easements serving four or more parcels shall be named. Road name signs shall comply with City of Poway Supplemental Engineering Standards, Street Sign Specifications. The fire code official may require the posting of a fire access roadway where parking has obstructed or could obstruct the required width.
Section 503.6.1 is added to read:
503.6.1 Security Gates. All automatic gates across fire access roadways and driveways shall be equipped with approved, emergency, key-operated switches overriding all command functions and opening the gate(s). Gates accessing more than four residences or residential lots, or gates accessing hazardous institutional, educational or assembly occupancy group structures shall also be equipped with approved emergency traffic control-activating strobe light sensor(s), or other devices approved by the fire code official, which will activate the gate on the approach of emergency apparatus with a battery backup or manual-mechanical disconnect in case of power failure.
Section 505.1 is modified to read:
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505.1 Address Numbers. Approved numbers and/or addresses shall be placed on all new and existing buildings and at appropriate additional locations as to be plainly visible and legible from the street or roadway fronting the property from either direction of approach.
Address numbers shall contrast with their background and meet the City of Poway standards. Additional address numbers may be required where deemed necessary by the December 6, 2022, Item #12
Ordinance No.
fire code official. Accessory dwelling units and junior accessory dwelling units shall require separate addresses. When required by the fire code official, roof numbers shall be installed meeting current fire department standards.
Section 505.3 is added to read:
505.3 Easement Address Signs. All easements which are not named differently from the roadway from which they originate, shall have an address sign installed and maintained, listing all street numbers occurring on that easement located where the easement intersects the named roadway. The minimum size of the numbers on that sign shall be four inches in height with a minimum stroke of 3/8 inch and shall contrast with the background.
Section 505.4 is added to read:
505.4 Map/Directory. A lighted directory map, meeting current fire department standards, shall be installed at each driveway entrance to multiple unit residential projects and mobile home parks, where the number of units in such project exceeds 15.
Section 506.1 is modified to read:
506.1 Key Boxes. When access to or within a structure or an area is unduly difficult because of secured openings or where immediate access is necessary for life saving or firefighting purposes, the fire code official is authorized to require a key box to be installed in an accessible location. The key box shall be a type approved by the fire code official and shall contain keys to gain necessary access.
Section 506.2.1 is added to read:
506.2.1 Emergency Key Access. All central station-monitored fire detection systems and fire sprinkler systems shall have an approved emergency key access box on site in an approved location. The owner or occupant shall provide and maintain current keys for the structure(s) for fire department placement in the box and shall notify the fire department in writing when the building is re-keyed.
Section 507.2.2 is modified to read:
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507.2.2 Water Storage Tanks. Water storage tanks, when permitted by the fire code official, shall comply with Table No. 507.2.2 and installed in accordance with NFPA 22.
TABLE NO. 507.2.2
Gallons Per
Building Minute Water Capacity Duration
Square Feet Flow Gallons Minutes
Up to 3,600 10,000 40
3,601 to 7,700 250 15,000 60
December 6, 2022, Item #12
Ordinance No.
7,701 and above I 333 I 20,000 I 60
When the exposure distance is 100 feet or less from an adjacent property or the severity of the potential fire risk has been determined to exist, an increase in water storage may be required by the fire code official.
1. Tank elevation shall be equal to or higher than the fire department connection on the premises. Regardless of domestic use, all tanks shall be equipped with a device that will ensure that the tank contains the designated amount of water for fire flow duration as determined by the Fire Department. Tank size may be increased to serve multiple structures on a single parcel.
2. The supply outlet shall be at least four inches in diameter from the base of the tank to the point of outlet at the fire department connection. The fire department connection shall be at least one 4-inch National Standard Thread (male), reduced to one 2 1/2-inch National Standard Thread (male). Additional outlets may be required.
3. Tanks that are supplied by municipal water, when permitted by the fire code official, shall have a capacity of 10,000 gallons provided that the sole use of these tanks is for fire protection purposes.
4. Location of fire department outlet shall be determined on the plot plan when submitted to the fire department. Consideration will be given to factors such as topography, elevations, and distance from structures, driveway access, and prevailing winds.
5. The outlet shall be located along an access roadway and shall not be closer than 50 feet or further than 150 feet from the structure.
6. All exposed tank supply pipes shall be of an alloy or other material listed for above ground use. Adequate support shall be provided.
7. Water storage tanks shall be constructed from materials approved by the fire code official and installed per manufacturer recommendations.
8. The fire code official may require any necessary information be submitted on a plot plan for approval.
9. Vessels previously used for products other than water shall not be permitted.
Section 507.3 is modified to read:
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507.3 Fire Flov, Requirements. Fire flows shall be based on Appendix B. Consideration should be given to increasing the gallons per minute set forth in Appendix B to protect structures of extremely large square footage and for such reasons as poor access roads, grade and canyon rims, hazardous brush, and response times greater than five minutes by a recognized fire department or fire suppression company. In hazardous fire areas, the main capacity for new subdivisions shall not be less than 1,500 gallons per minute, unless otherwise approved by the fire code official. If fire flow increases are not feasible, the fire code official may require alternative design standards such as alternative types of construction providing a higher level of fire resistance, fuel break requirements 1.vhich December 6, 2022, Item #12
Ordinance No.
could include required irrigation, modified access road requirements, specified setback distances for building sites addressing canyon rim developments and hazardous brush areas, and other requirements authorized by this Code and as specified by the fire code official.
15.24.060 Building services and systems.
Section 605J.8.1 is modified to read:
60§.J.8.1 Residential Incinerators. Residential incinerators shall be prohibited.
15.24.070 Fire sprinkler systems.
Section 903.2 is modified to read:
903.2 Where Required. Approved automatic sprinkler systems in new buildings and structures shall be provided in the locations described in this section. For the purpose of fire sprinkler systems, buildings separated by less than ten feet from adjacent buildings shall be considered as one building. Fire barriers, partitions, and walls, regardless of rating, shall not be considered as creating separate buildings for purposes of determining fire sprinkler requirements. Mezzanines shall be included in the total square footage calculation.
Exceptions:
1. Agricultural buildings constructed of 11100d or metal frames over which fabric or similar material is stretched which are specifically used as green houses are exempt from fire sprinkler requirements unless they are physically connected to other structures.
2. Group U occupancies not greater than 74 9 square feet, when the building is 10 feet or more from an adjacent structure or property line.
All occupancies 111ithin the City of Poway:
New New Additions All Gccupancies Additions Residential Gccupancies Gccupancies (Except Residential) located in the City's 11-ery high (Except Residential fire hazard area*
Residential)
All buildings Required per Additions of more than 2a% of Residences may be reEtuired greater than California the square footage of an existin§ to install a Sprinkler system a,ooo sq. ft. Residential building, which results in a when the proposed addition is Gooe structure of a,000 square feet or more than 749 SE!Uare feet more, shall be required to be which results in a structure of protected throu§hout the entire 3,eOO square feet or more structure with a sprinkler system when structurally feasible. consistent with this section.
Residences may be required
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Ordinance No.
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Section 903.3 is modified to read:
903.3 Installation Requirements. Automatic sprinkler systems shall be designed and installed in accordance with Sections 903.3.1 through 903.3.8. The system shall be designed 10% below ("off the top") available water source pressure during peak usage.
Section 903.3.1.1.4J is added to read:
903.3.1.1.4J System Design. Occupancies referred to as "spec buildings" wherein no specific end use is identified at the time of plan check, the sprinkler system shall provide a density of 0.45 gallons per minute per square-foot for a 3,000-square-foot design area.
Section 903.3.1.3.1 is added to read:
903.3.1.3.1 Water Supply Design. 1. New stFustuFes less tt:laR 7aQ squaFe feet iR size st:lall be equi1313eEI witR a FRiRiFRLIFR ef 314 iRSR wateF seFvise Ii Re aREI 3/4 iRSR wateF FReteF. New structures FR9Fe tt:laR 749 squaFe feet iR size shall be equipped with a minimum one-inch water service line and one-inch water meter.
SestieR 9Q3.4, Exse13ti0R 1, is FReElifieEI te FeaEI:
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Exception 1 Automatic sprinkler systems 1Nith less than 100 fire sprinklers protecting one and two family d•Nellings.
15.24.080 Construction Requirements for Existing Buildings Section 1103.5 Sprinkler systems is modified to read:
An automatic sprinkler system shall be provided in existing buildings in accordance with Sections 1103.5.1 through 1103.5.5, and all existing buildings and structures with an existing fire sprinkler system(s) undergoing improvements and/or additions shall be provided with approved fire sprinkler protection in accordance with the appropriate NFPA design.
15.24.0~S0 Fire safety during construction.
Section 3318 is added to read:
Section 3318
Fuel Modification Zones
3318.1 General. Any person doing construction of any kind which requires a building permit and includes installation of a fuel modification zone, shall remove all flammable vegetation within the approved fuel modification zone prior to the arrival of combustible material on the site and shall maintain during the duration of the project until all elements of approved fuel modification zones are installed and approved.
15.24._1.Q90 Wildland-Urban Interface Fire Area
Section 4903 is added to read:
SECTION 4903
FIRE PROTECTION PLAN
4903.1 When required. The Development Services Department or the FAHJ may require an applicant for a parcel map, subdivision map, minor development review application, development review, specific plan or major use permit for any property located in a wildland-urban interface fire area to submit a Fire Protection Plan (FPP) as part of the approval process. 4903.2 Contents. The FPP shall consider location, topography, geography, aspect, combustible vegetation (fuel types), climatic conditions and fire history. The plan shall address the following in terms of compliance with applicable codes and regulations, includingJ. but not limited toJ..,. water supply, vehicular and emergency apparatus access, travel time to nearest serving fire station, structural ignitability, structure set back, ignition-resistive building features, fire protection systems and equipment, impacts to existing emergency services, defensible spaceJ. and vegetation management. The plan shall recommend measures to reduce the ignitability of structures throughout the area being addressed.
Section 4907.2:1 is added to read:
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4907.21_ General Fire Setbacks. Within Rural Residential Zones, except for noncombustible buildings and structures, 8.Quildings and structures located within a wildland-urban interface fire area shall be setback a minimum of 30 feet from property lines and biological open space easements unless the Poway Municipal Code requires a greater minimum_or if existing legally permitted buildings and structures are located within 30 feet of the property line (legal nonconforming), then the existing distance from the property lot line established by the nonconforming portion of the building shall be used as the required setback distance for any detached accessory structures or additions to that building. When the property line abuts a roadway, the setback shall be measured from the farthest roadway edge.
Exception:
When the fire code official determines the hazard from a wildland fire is not significant or when the terrain, parcel size or other constraints on the parcel make the required setback infeasible, this setback may be reduced to less than 30 feet when additional measures are employed to the satisfaction of the fire code official. No other exceptions to the General Fire Setback is permissible except for the creation of Accessory Dwelling Units and Junior Accessory Dwelling Units as defined in PMC Title 17.
Section 4907.J~ is added to read:
4907.J~ Structure Setback from Slope. Single-story structures shall be setback a minimum 15-feet horizontally from top of slope to the farthest projection from a roof. A single-story structure shall be less than 12-feet above grade. A two-story structure shall be setback a minimum of 30-feet horizontally from top of slope to the farthest projection from a roof. Structures greater than two stories may require a greater setback when the slope is greater than 2 to 1.
Exceptions:
1. Structures constructed with a noncombustible exterior wall adjacent to the slope, no openings adjacent to the slope, no combustible attachments to the exterior wall adjacent to the slope, and no roof eaves adjacent to the slope.
2. There exists no open wildland fuel area directly adjacent or juxtaposed to the structure, and the slope is directly adjacent to developed parcels with fuel management principals in place.
3. The fire code official determines the hazard to be minimal.
Section 4907.4§ is added to read:
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4907.4§ Fuel Modification. A person owning, leasing, controlling, operating or maintaining a building or structure in or adjoining a hazardous fire area, and a person owning, leasing or controlling land adjacent to a building or structure in or adjoining a hazardous fire area shall maintain an effective fuel modification zone by removing, clearing or modifying combustible vegetation and other flammable materials from areas within 100-feet from each building or structure, or as determined by the fire code official as further described below. With the approval of the fire code official, the width of the fuel modification zone may be reduced where ignition-resistant construction or other mitigation measures are December 6, 2022, Item #12
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Ordinance No.